For personal use only BIDDER’S STATEMENT
THIS DOCUMENT IS IMPORTANT AND REQUIRES YOUR IMMEDIATE ATTENTION If you are in any doubt as to how to deal with it, you should consult your legal, financial or other professional adviser as soon as possible.
Recommended Offer by: BCX Gold Investment Holdings Ltd (a company incorporated in the British Virgin Islands) Company number 1615265
to purchase all or some of your ordinary shares in:
ABN 35 094 265 746 Registered in South Africa as an external company under Registration No. 2009/000032/10
For each Gold One Share you will receive A$0.55 cash
Gold One Directors recommend that Gold One Shareholders who wish to realise, in whole or in part, their investment in Gold One for cash ACCEPT THE OFFER (in whole or in part), after the Gold One Shareholder Meeting (provided the Gold One Shareholders’ Resolution is passed) and in the absence of a superior proposal. In the absence of a superior proposal, the Gold One Directors also recommend that you support the Transaction and VOTE IN FAVOUR of the Gold One Shareholders’ Resolution.
The Offer is dated Monday, 8 August 2011 and will close at 7.00pm (Sydney time) / 10.00am (South African time) on Friday, 11 November 2011, unless extended or withdrawn. For personal use only use personal For For personal use only Bidder’s Statement
Important Notice
This Bidder’s Statement is given by BCX Gold Investment Holdings Ltd (a company incorporated in the British Virgin Islands with company number 1615265) (“BCX Gold”) to Gold One International Limited (ABN 35 094 265 746 and registered in South Africa as an external company under Registration No. 2009/000032/10) (“Gold One”) under Part 6.5 of the Corporations Act and sets out certain disclosures required by the Corporations Act together with the terms of the Offer to acquire your Gold One Shares. This Bidder’s Statement is dated 3 August 2011. It includes an Offer dated 8 August 2011 on the terms set out in Appendices 1 and 2 of this Bidder’s Statement. A copy of this Bidder’s Statement was lodged with ASIC on 3 August 2011. ASIC takes no responsibility for the content of this Bidder’s Statement.
Defined terms
Terms used in this Bidder’s Statement are defined in the Glossary.
Investment decisions
This Bidder’s Statement does not take into account the individual investment objectives, financial situation or particular needs of each Gold One Shareholder. Gold One Shareholders should consider seeking independent financial and taxation advice before making a decision as to whether or not to accept the Offer.
Notice to foreign Gold One Shareholders
This Bidder’s Statement and the Offer are subject to Australian and South African disclosure requirements which may be different from those applicable in other jurisdictions. This Bidder’s Statement and the Offer do not in any way constitute an offer of securities in any place in which, or to any person to whom, it would not be lawful to make such an offer. The distribution of this Bidder’s Statement may, in some countries, be restricted by law or regulation. Accordingly, persons who come into possession of this Bidder’s Statement should inform themselves of, and observe, those restrictions.
Notice to holders of Gold One ADSs
This Bidder’s Statement should be read in conjunction with the Target’s Statement and the Supplemental Notice. The Supplemental Notice contains important information for holders of Gold One ADSs, including specific instructions for participating in the Offer and the related timetable. Failure to comply with such instructions or timetable may prevent a holder of Gold One ADSs’ tender from being accepted.
Disclaimer as to forward looking statements
This Bidder’s Statement contains or incorporates by reference both historical and forward-looking statements. All statements other than statements of historical fact are, or may be deemed to be, forward-looking statements. All forward-looking statements in or incorporated by reference in this Bidder’s Statement reflect views only as at the date of this Bidder’s Statement, and generally may be identified by the use of forward-looking words such as “believe”, “aim”, “expect”, “anticipate”, “intending”, “foreseeing”, “likely”, “should”, “planned”, “may”, “estimate”, “potential”, or other similar words. Similarly, statements that describe BCX Gold’s objectives, plans, goals or expectations are or may be forward-looking statements. These forward-looking statements involve known and unknown risks, uncertainties and other factors that may cause actual results, performance or achievements to differ materially from the anticipated results, performance or achievements, expressed, projected or implied by these forward-looking statements. Those risks and uncertainties include factors and risks specific to the industries in which Gold One, BCX Gold and their respective affiliates operate as well as general economic conditions, prevailing exchange rates and interest rates and conditions in the financial markets. As a result, the actual results of operations and earnings of Gold One following implementation of the Offer, as well as the actual advantages of the Offer, may differ significantly
from those that are anticipated in respect of timing, amount or nature and may never be achieved. For personal use only use personal For Gold One Shareholders should note that the historical financial performance of Gold One is no assurance of the future financial performance of Gold One. The forward-looking statements included in or incorporated by reference in this Bidder’s Statement are made only as of the date of this Bidder’s Statement. None of BCX Gold and its associates, or their officers or any persons named in this Bidder’s Statement with their consent, or any person involved in the preparation of this Bidder’s Statement, makes any representation or warranty, express or implied, as to the likelihood of fulfilment of any forward-looking statement, or any events or results expressed or implied in any forward-looking statement, except to the extent required by law. You are cautioned not to place undue reliance on any forward-looking statement. Gold One Shareholders should review carefully all of the information in this Bidder’s Statement, the Target’s Statement and the Notice of Meeting (including the Explanatory Memorandum).
Bidder’s Statement | 1 Subject to any continuing obligations under relevant laws or the listing rules of a relevant exchange, BCX Gold does not give any undertaking to update or revise any such statements after the date of this Bidder’s Statement, to reflect any change in expectations in relation thereto or any change in events, conditions or circumstances on which any such statement is based.
Disclaimer as to information
The information in the Bidder’s Statement concerning Gold One and its assets and liabilities, financial position and performance, profits and losses and prospects, has been provided by Gold One and has not been independently verified by BCX Gold. Accordingly BCX Gold does not, subject to the Corporations Act, make any representation or warranty, express or implied, as to the accuracy or completeness of such information.
Privacy
BCX Gold has collected your information from the register of Gold One Shareholders for the purposes of making the Offer and, if accepted, administering your holding of Gold One Shares. The Corporations Act requires the names and addresses of Gold One Shareholders to be held in a public register. Your information may be disclosed on a confidential basis to BCX Gold and its related bodies corporate, and holders of securities in BCX Gold or its affiliates and external service providers, and may be required to be disclosed to regulators, such as ASIC. The registered office of BCX Gold is Suite 2111, Orient Plaza Block E1, 1 Chang An Avenue, Beijing, China 100738.
Offer Information Line
If you have any questions about this document or the Offer, please call the Offer Information Line on 1800 440 201 for persons dialling within Australia, 0800 983 461 for persons dialling within South Africa and +612 8256 3392 for persons dialling outside Australia or South Africa. The Offer Information Line is available Monday to Friday between 9.00am and 8.00pm (Sydney time) (being currently 1.00am and 12.00pm (South African time)).
Important dates
Announcement of Offer Monday, 16 May 2011 Date of Bidder’s Statement Wednesday, 3 August 2011 Date of Offer Monday, 8 August 2011 Date of Gold One Shareholder Meeting Wednesday, 7 September 2011 Date for announcing if the Offer has become unconditional 14 days before the close of the Offer Period, being Friday, 28 October 2011 (unless the Offer is extended or withdrawn) Close of Offer Period, unless extended or withdrawn 7.00pm (Sydney time) / 10.00am (South African time) on Friday, 11 November 2011 Expected date of payment of Offer consideration to Gold Friday, 18 November 2011 One Shareholders (Note: This date depends on when Gold One Shareholders accept the Offer and when the Offer becomes unconditional – see clause 5 of Appendix 1 for more details)
Note: the Closing Date for the Offer may change as permitted by the Corporations Act. Any changes to the above timetable will be announced through ASX.
For further key dates relating to the Transaction generally, including the Subscription, see the Key Dates section on page 6 of the Explanatory Memorandum. For personal use only use personal For
2 | BCX Gold Investment Holdings Ltd Contents
1 overview of the Offer...... 5 2 how to accept the Offer...... 10 3 information on BCX Gold and the Consortium...... 12 4 information on Gold One...... 16 5 BCX Gold’s intentions...... 18 6 share capital information...... 22 7 funding...... 23 8 australian taxation considerations...... 24 9 south African taxation considerations...... 26 10 additional information...... 28 11 Glossary...... 36 12 approval of Bidder’s Statement...... 41 Appendix 1 – Formal terms of the Offer...... 42
Appendix 2 – Conditions of the Offer...... 53 For personal use only use personal For
Bidder’s Statement | 3 BCX Gold offers to acquire your Gold One Shares for A$0.55 cash per Gold One Share on the Offer Terms set out in Appendices 1 and 2 to this Bidder’s Statement.
Why you should ACCEPT THE OFFER
4 Attractive cash Offer Price of A$0.55 per Gold One Share represents a significant premium to the pre-announcement trading price of Gold One Shares 4 The Independent Expert has concluded that the Transaction (see section 1 for more details) is, in the absence of a superior proposal: • fair and reasonable to non-associated Gold One Shareholders who approve the Subscription (see section 1 for more details) and accept the Offer • not fair but reasonable to non-associated Gold One Shareholders who approve the Subscription but reject the Offer 4 The Gold One Board has recommended that Gold One Shareholders who wish to realise, in whole or in part, their investment in Gold One for cash ACCEPT THE OFFER (in whole or in part), after the Gold One Shareholder Meeting (provided the Gold One Shareholders’ Resolution is passed) and in the absence of a superior proposal 4 The Offer requires a certain number of acceptances to proceed to completion (the 60% Minimum Interest Condition, which may be waived by BCX Gold – see section 1 for more details) 4 If the Transaction does not proceed to completion, Gold One may not be able to proceed effectively with its corporate development and realise its share price potential 4 Current Gold One Shareholders who do not accept the Offer will have an investment in a company which has a majority shareholder and will experience a dilution of their voting power in Gold One if the Transaction proceeds because For personal use only use personal For of the effect of the Subscription – for those Gold One Shareholders, the Independent Expert has concluded that the Transaction is not fair but reasonable 4 No superior proposal has been received by Gold One to date
Please refer to Part B of the Target’s Statement for more information on the above reasons.
4 | BCX Gold Investment Holdings Ltd 1 overview of the Offer
This overview provides a summary of the key details about the Offer. You should read this Bidder’s Statement, the Target’s Statement and the Notice of Meeting (including the Explanatory Memorandum) in full before deciding whether to accept the Offer and vote in favour of the Gold One Shareholders’ Resolution.
Where to find more information What is the Offer? BCX Gold offers to acquire some or all of your Gold One Shares for A$0.55 cash per Gold One Appendices 1 and 2 Share on the Offer Terms set out in Appendices 1 and 2 to this Bidder’s Statement. The Offer relates to Gold One Shares that exist or will exist as at the Register Date. The Offer also extends to all Gold One Shares that are issued between that date and the end of the Offer Period as a result of the conversion of Convertible Bonds or the exercise of Options. This means that holders of Convertible Bonds who convert their Convertible Bonds into Gold One Shares and holders of Options who exercise their Options will be able to participate in the Offer. However, BCX Gold is not offering to acquire any Convertible Bonds or Options. The Offer may be accepted for some or all of your Gold One Shares, at your discretion. What is the The Offer forms part of the Transaction, under which BCX Gold has also agreed to, amongst other Section 1.1 and cover Transaction (including things, subscribe for Gold One Shares. letter, Explanatory the Subscription)? Memorandum The Subscription is made up of the following three components: • the “Initial Subscription” – an initial subscription for 375,000,000 Gold One Shares at an issue price of A$0.40 per Gold One Share, representing a capital raising of A$150 million; • the “Additional Subscription” – an additional subscription for up to 188,679,245 Gold One Shares at an issue price of A$0.53 per Gold One Share. The right to subscribe for these Gold One Shares is triggered if, after the Offer and the Initial Subscription, BCX Gold will not have an interest of 60% or more in Gold One on a Fully Diluted Basis; and • the “Adjustment Subscription” – a potential “claw-back” or adjustment subscription for up to a maximum of 492,002,621 Gold One Shares at no additional cost. The right to subscribe for these Gold One Shares is triggered if Gold One does not meet its forecast 2011 production target of 120,000 ounces of gold, and the amount of the “claw-back” is proportional to the shortfall up to a minimum prescribed limit of 84,000 ounces, below which there is no further impact (that is, no further Gold One Shares will be issued). How do the Offer The Offer and the Subscription are interdependent – one cannot complete without the other. Section 1.1 of and the Subscription the Explanatory This is because: interrelate? Memorandum • the Offer is conditional on, among other things, the Gold One Shareholders’ Resolution being approved by Gold One Shareholders and BCX Gold will not waive this Condition; and • the Subscription is subject to certain conditions precedent, including: • the Gold One Shareholders’ Resolution being approved by Gold One Shareholders; and • the Offer must have been made and the Offer Period must have come to an end, the Offer having first become unconditional (so that Gold One Shareholders have hadan opportunity to receive and accept the Offer, should they wish to do so). What is the Gold The Subscription, comprising the Initial Subscription, the Additional Subscription and the Notice of Meeting and One Shareholders’ Adjustment Subscription, is the subject of the Gold One Shareholders’ Resolution contained in Section 1.1 and cover Resolution? the Notice of Meeting. Approval of the Gold One Shareholders’ Resolution for the Subscription is letter, Explanatory required by item 7 of section 611 of the Corporations Act, as modified by an instrument issued by Memorandum ASIC, with the effect that the resolution must be approved by: Section 10.1(f)(ii) • a majority in number (ie more than 50%) of Gold One Shareholders who vote at the Gold One and sections 14
For personal use only use personal For Shareholder Meeting on the resolution (in person or by proxy or by representative); and and 15, Explanatory Memorandum • Gold One Shareholders whose Gold One Shares in aggregate account for at least 75% of the votes cast on the resolution. A separate resolution to approve retention payments to Neal Froneman and Christopher Chadwick, two directors of Gold One, will also be considered at the Gold One Shareholder Meeting. The Offer and the Subscription are not conditional on that resolution being approved by Gold One Shareholders.
Bidder’s Statement | 5 What is the 60% During the Offer Period, BCX Gold must obtain a 60% interest in Gold One on a Fully Diluted Basis. Section 10.1(b)(iii) Minimum Interest This Condition is not a typical “minimum acceptance condition” under a standard takeover offer – it Condition? does not require 60% of all Gold One Shares to be accepted into the Offer. This Condition requires certain deemed interests (including the Gold One Shares the subject of the AGC Acquisition) to be aggregated in order to determine whether it has been satisfied and takes into account Gold One Shares which BCX Gold may acquire under the Initial Subscription and the Additional Subscription. As at the last practicable date before the date of this Bidder’s Statement, being Monday, 1 August 2011, the Offer requires at least 277,719,520 Gold One Shares to be accepted into the Offer in order for the 60% Minimum Interest Condition to be satisfied. This number represents approximately 41.68% of the number of Gold One Shares on issue which are capable of being accepted into the Offer, being 666,300,901 Gold One Shares.1 For illustrative purposes, if the maximum number of Gold One Shares is issued under the Initial Subscription, BCX Gold will obtain a total voting power of approximately 43.72% in Gold One (35.67% on a Fully Diluted Basis). This figure: • assumes that there are no acceptances under the Offer; • assumes that BCX Gold has waived the 60% Minimum Interest Condition; and • includes the relevant interest BCX Gold already has in Gold One as a result of the AGC Acquisition. What does the The Independent Expert, in forming its opinion, considered both of the following potential outcomes for Section 1.3 and Independent Expert say non-associated Gold One Shareholders, should the Transaction proceed: Annexure D, about the Transaction Explanatory • non-associated Gold One Shareholders approve the Subscription and accept the Offer, receiving (including the Offer)? Memorandum certain cash consideration now of A$0.55 per Gold One Share (“Outcome 1”); and • non-associated Gold One Shareholders approve the Subscription including the Initial Subscription at A$0.40 per Gold One Share but elect not to accept the higher Offer price of A$0.55 per Gold One Share (“Outcome 2”). In relation to Outcome 1, the Independent Expert has concluded that the Transaction is, in the absence of a superior proposal, fair and reasonable to non-associated Gold One Shareholders who approve the Subscription and accept the Offer. In relation to Outcome 2, the Independent Expert has concluded that the Transaction is not fair but reasonable to non-associated Gold One Shareholders who approve the Subscription but reject the Offer. The Independent Expert has also noted that whilst the Transaction in relation to Outcome 2 for non- associated Gold One Shareholders who reject the Offer would not be fair but reasonable, it would only be not fair by virtue of the decision of those individual Gold One Shareholders not to accept the Offer. Who is BCX Gold? BCX Gold is a limited company incorporated under the laws of the British Virgin Islands, which Section 3.1 will, at or before the end of the Offer Period, be held by a consortium of investors from the PRC. When is the Offer The Offer is scheduled to close at 7.00pm (Sydney time) / 10.00am (South African time) on Friday, Clause 3, Appendix 1 scheduled to close? 11 November 2011, but it may be extended or withdrawn. How do I accept the Acceptances for the Offer must be received in sufficient time to be acted upon before the Closing Sections 2.1 and 2.2 Offer? Date. To accept the Offer you should follow the instructions set out in sections 2.1 and 2.2 of this Bidder’s Statement. It is important to note that your acceptance cannot be withdrawn unless a withdrawal right arises under the Corporations Act. Such a withdrawal right will arise if after you have accepted the Offer, BCX Gold varies the Offer in a way that postpones for more than one month the time when BCX Gold has to meet its obligations under the Offer. When should I accept BCX Gold recommends that Gold One Shareholders accept the Offer but not until after the Gold N/A the Offer? One Shareholders’ Resolution is approved at the Gold One Shareholder Meeting scheduled to be held on Wednesday, 7 September 2011, as one of the Conditions to the Offer is that the Gold One Shareholders’ Resolution is approved by Gold One Shareholders and BCX Gold will not waive this
Condition.2 For personal use only use personal For
1 The number of Gold One Shares on issue capable of being accepted into the Offer (being 666,300,901 Gold One Shares) is the current number of Gold One Shares on issue less the number of Gold One Shares in which BCX Gold has a relevant interest as a result of the AGC Acquisition. See section 6.3 for further details about the AGC Acquisition.
2 This should not be taken to mean that BCX Gold is committing to waive any other Condition.
6 | BCX Gold Investment Holdings Ltd If I accept the Offer, If you accept the Offer (and return any documents required with your acceptance), you will be Clause 5, Appendix 1 when will I be paid? paid within 5 Business Days after the end of the Offer Period. However, if doing this would result in payment more than 1 month after the date of which the Offer is declared unconditional, then, provided you have accepted the Offer before it becomes unconditional, BCX Gold will provide the consideration to which you are entitled on acceptance of the Offer by no later than the date that is 1 month after the date the Offer is declared unconditional. If you accept the Offer after it becomes unconditional, you will be paid within the earlier of one month after acceptance and 5 Business Days after the end of the Offer Period. How will I be paid? For those Gold One Shareholders who hold Gold One Shares on the Gold One Australian Share Clauses 2 and 5, Register and accept the Offer, the consideration will be settled in Australian currency. Appendix 1 For those Gold One Shareholders who hold Gold One Shares on the Gold One South African Share Register, to satisfy the Exchange Control Regulations, the consideration will be settled in ZAR. This will involve the Australian cash consideration being converted into ZAR based on the spot A$/ZAR rate on the date on which the consideration is paid and then paid on the same day to Gold One Shareholders on the Gold One South African Share Register who have accepted the Offer. This means that the value of any consideration Gold One Shareholders who hold Gold One Shares on the Gold One South African Share Register receive under the Offer will be affected by the prevailing market exchange rate at the time of payment and there is a risk that: • the exchange rate prevailing on the day those Gold One Shareholders accept the Offer may differ from the rate prevailing at the time of payment; • there may be a significant shift in the exchange rate, which may affect the value of the Offer Price in ZAR terms for that Gold One Shareholder; and • different Gold One Shareholders who hold Gold One Shares on the Gold One South African Share Register who accept the Offer at different times may receive different ZAR amounts as consideration under the Offer. This is because the timing of payment of consideration may differ depending on when the Offer is accepted. What happens if I do If you do not accept the Offer, you will remain a Gold One Shareholder and will not receive any N/A not accept the Offer? cash consideration. However, if BCX Gold becomes entitled to compulsorily acquire your Gold One Shares, it reserves Section 5.4 the right to do so. BCX Gold has made no decision as to whether it would seek to exercise this compulsory acquisition power. If BCX Gold does exercise its right to compulsorily acquire your Gold One Shares, you will receive the consideration under the Offer for your Gold One Shares but
at a later date than you would have received it if you had accepted the Offer. For personal use only use personal For
Bidder’s Statement | 7 What are the The Offer is subject to the Conditions as set out in Appendix 2 to this Bidder’s Statement, including: Appendix 2 Conditions to the (a) the 60% Minimum Interest Condition (see explanation above); Offer? (b) governmental and regulatory approvals; (c) Gold One Shareholder approval of the Subscription; (d) an independent expert concluding that the Transaction is fair and reasonable to Gold One Shareholders and maintaining that opinion until the end of the Offer Period; (e) Gold One Directors do not, before the end of the Offer Period, withdraw or change their recommendations; (f) no material adverse change during the Offer Period; (g) no prescribed occurrences (such as share buybacks, certain capital reconstructions, capital reductions, certain security issues, delisting and insolvency type events) during the Offer Period; (h) all required third party approvals are obtained; (i) no action is taken by a public authority which adversely affects the Transaction; (j) no rights are exercised by third parties under certain agreements or instruments; (k) no material acquisitions, disposals or new commitments by Gold One (subject to certain exceptions); (l) no third party acquires a relevant interest in 20% or more of the Gold One Shares; (m) Gold One or a subsidiary of Gold One not becoming insolvent; (n) Gold One does not during the Offer Period, announce or declare (or announce an intention to make or declare) any distribution (subject to certain exceptions); (o) Gold One does not agree to conclude a Gold One Project which involves the issue of Gold One Shares at a price lower than the Offer Price (except in the case of the Goliath Transaction) or involves the aggregate consideration payable being more than 5% of the market capitalisation of Gold One (except in the case of the Goliath Transaction and the proposed acquisition of Rand Uranium announced by Gold One to ASX on 28 April 2011); and (p) the TIA is not terminated by BCX Gold due to a breach by Gold One of that document. BCX Gold has the discretion to waive the above Conditions, although BCX Gold will not waive the Condition that the Gold One Shareholders’ Resolution is approved by Gold One Shareholders. Can I sell my Gold One Yes. However, once you accept the Offer (even while it remains subject to any Conditions) or N/A Shares now? BCX Gold becomes entitled to acquire your Gold One Shares under compulsory acquisition in accordance with the Corporations Act, you will not be permitted to sell your Accepted Shares on ASX or JSE, accept any other offer or otherwise deal with your Accepted Shares, subject to you exercising any withdrawal rights which might arise. What are the tax A general overview of the Australia taxation implications of accepting the Offer for Gold One Sections 8 and 9 implications of Shareholders is outlined in section 8. A general overview of the South African taxation implications accepting the Offer? of accepting the Offer for Gold One Shareholders is outlined in section 9. You should not rely on that description as advice for your own affairs. You should consult your taxation adviser for detailed advice before making a decision whether or not to accept the Offer. Will I need to pay You will not be required to pay any brokerage costs or stamp duty or securities transfer tax on Clause 11.3, brokerage, stamp duty acceptance of the Offer, unless your Controlling Participant (usually a broker), CSDP or broker Appendix 1 or securities transfer charges brokerage on acceptance of an Offer where the Accepted Shares are held in a CHESS tax if I accept the Holding (HIN starting with an “X”) or in uncertificated form.
Offer? For personal use only use personal For
8 | BCX Gold Investment Holdings Ltd What should I do next? Step 1. Carefully read this Bidder’s Statement and consider the information provided. N/A Step 2. Carefully read the entire Target’s Statement, Notice of Meeting and Explanatory Memorandum provided by Gold One. Step 3. If you are in any doubt as to how to deal with this Bidder’s Statement, you should consult your broker or your legal, financial or other professional adviser. If you have any questions about this Bidder’s Statement or the Offer, please call the Offer Information Line on 1800 440 201 for persons dialling within Australia, 0800 983 461 for persons dialling within South Africa and +612 8256 3392 for persons dialling outside Australia or South Africa. The Offer Information Line is available Monday to Friday between 9.00am and 8.00pm (Sydney time) (being currently 1.00am and 12.00pm (South African time)). Step 4. If you wish to accept the Offer, follow the instructions set out in section 2 prior to the Closing Date. BCX Gold recommends that Gold One Shareholders accept the Offer but not until after the Gold One Shareholders’ Resolution is approved at the Gold One Shareholder Meeting, as one of the Conditions to the Offer is that the Gold One Shareholders’ Resolution is approved by Gold One
Shareholders and BCX Gold will not waive this Condition.3 For personal use only use personal For
3 This should not be taken to mean that BCX Gold is committing to waive any other Condition.
Bidder’s Statement | 9 2. how to accept the Offer
2.1 Gold One Shareholders on the Gold One Australian Share Register How you accept the Offer depends on whether your Gold One Shares are in an Issuer Sponsored Holding or a CHESS Holding: (a) If you hold your Gold One Shares in an Issuer Sponsored Holding (your SRN starts with an “I”), to accept the Offer you must complete, sign and return the enclosed blue Australian Acceptance Form, in accordance with the instructions on it, to the address indicated on the form (and set out below) before the end of the Offer Period. (b) If you hold your Gold One Shares in a CHESS Holding (your HIN starts with an “X”), to accept the Offer you must either: (i) instruct your Controlling Participant (for example, your broker) to initiate acceptance of the Offer before the end of the Offer Period; or (ii) complete the accompanying blue Australian Acceptance Form and send the completed blue Australian Acceptance Form (together with all other documents required by the instructions on the form) directly to your broker or other Controlling Participant in sufficient time for the Offer to be accepted before the end of the Offer Period with instructions to initiate acceptance of the Offer on your behalf before the end of the Offer Period; or (iii) complete, sign and return the blue Australian Acceptance Form in accordance with the instructions on it and lodge it by returning it to the address indicated on the form (and set out below) so that your acceptance is received before 7.00pm (Sydney time) on the second last business day of the Offer Period. This will authorise BCX Gold to instruct your broker or other Controlling Participant to initiate acceptance of the Offer on your behalf. (c) If you are a Broker or an ASX Settlement Participant, to accept the Offer you must initiate acceptance in accordance with the requirements of the ASX Settlement Operating Rules before the end of the Offer Period. (d) If some of your Gold One Shares are in an Issuer Sponsored Holding and some in a CHESS Holding, please read clause 4.3(d) of Appendix 1 to this Bidder’s Statement for instructions on how to accept the Offer. The postal and delivery addresses for completed blue Australian Acceptance Forms are as follows. The postal address is: Boardroom Pty Limited GPO Box 3993 Sydney NSW 2001 The transmission of the blue Australian Acceptance Form and other documents is at your own risk. You may deliver the blue Australian Acceptance Form and any associated documents in person to: Boardroom Pty Limited Level 7 207 Kent Street Sydney NSW 2000
For full details see clause 4.3 in Appendix 1 to this Bidder’s Statement. For personal use only use personal For
10 | BCX Gold Investment Holdings Ltd 2.2 Gold One Shareholders on the Gold One South African Share Register (a) Gold One Shares held in certificated form (that is, not in Strate) If you hold your Gold One Shares, or any of them, in certificated form (that is, not in Strate), to accept the Offer in respect of those Gold One Shares, you should complete the yellow SA Acceptance Form in accordance with the instructions printed on it and return the completed yellow SA Acceptance Form (together with your share certificate(s) and other document(s) of title) by post or by hand (during normal business hours) to Computershare at the address indicated on the yellow SA Acceptance Form (and set out below) as soon as possible and, in any event, so as to be received by Computershare not later than the Closing Date, being 10.00am (South African time) on Friday, 11 November 2011 (unless the Offer is extended or withdrawn). Further details on the procedures for acceptance of the Offer if you hold any of your Gold One Shares in certificated form are set out in clause 4.4(a) in Appendix 1 to this Bidder’s Statement. (b) Gold One Shares held in uncertificated form (that is, in Strate) If you hold your Gold One Shares, or any of them, in uncertificated form (that is, in Strate), your CSDP or stockbroker should contact you in terms of the custody or mandate agreement concluded between you and the CSDP or stockbroker, as the case may be, to ascertain whether or not you wish to accept the Offer. If you wish to accept the Offer but have not been contacted by your CSDP or stockbroker, it would be advisable to contact and furnish your CSDP or stockbroker with instructions in relation to the acceptance of the Offer. These instructions must be provided in the manner and by the cut-off date and time advised by your CSDP or stockbroker in terms of the custody or mandate agreement and must be communicated to Computershare, details of whom are set out below, by not later than the Closing Date, being 10.00am (South African time) on Friday, 11 November 2011 (unless the Offer is extended or withdrawn). Further details on the procedures for acceptance of the Offer if you hold any of your Gold One Shares in uncertificated form are set out in clause 4.4(b) in Appendix 1 to this Bidder’s Statement. Neither BCX Gold, Gold One nor Computershare take any responsibility nor will they be held liable for any failure on the part of any CSDP or stockbroker to notify you of the Offer and/or to obtain instructions from you and submit acceptances timeously to Computershare. The postal and delivery addresses for completed yellow SA Acceptance Forms are as follows. The postal address is: Computershare Investor Services (Proprietary) Limited PO Box 61763 Marshalltown 2107 The transmission of the yellow SA Acceptance Form and other documents is at your own risk. You may deliver the yellow SA Acceptance Form and any associated documents in person in South Africa to: Computershare Investor Services (Proprietary) Limited 70 Marshall Street Johannesburg 2001 For full details see clause 4.4 in Appendix 1 to this Bidder’s Statement.
2.3 holders of Options and Convertible Bonds The Offer relates to Gold One Shares that exist or will exist as at the Register Date, and extends to all Gold One Shares that are issued between that date and the end of the Offer Period as a result of the exercise of any Options or the conversion of any Convertible Bonds. As a holder of Options or Convertible Bonds, you may exercise, convert or otherwise deal with some or all of your Options or Convertible Bonds (subject to and in accordance with the relevant terms of those Options or Convertible Bonds, as the case may be) and if you are issued Gold One Shares on or before the end of the Offer Period as a result of the exercise of your Options or the conversion of your Convertible Bonds, accept the Offer for all or some of those Gold One Shares. For more information, see Part D of the Target’s Statement.
2.4 holders of Gold One ADSs The Offer is also being made for Gold One Shares that are represented by Gold One ADSs. Holders of Gold One ADSs will be entitled to the same choices as a Gold One Shareholder, provided they comply with the special instructions and timetable set out in the Supplemental Notice provided to them by The Bank of New York Mellon. Before deciding whether to participate in the Offer with respect to the Gold One Shares represented by their Gold One ADSs, holders of Gold One ADSs should read this Bidder’s Statement, the Target’s Statement and the Supplemental Notice. The timetable
for participation by holders of Gold One ADSs may vary from the dates set out in this Bidder’s Statement. For personal use only use personal For
Bidder’s Statement | 11 3. information on BCX Gold and the Consortium
3.1 BCX Gold The Offer is being made by BCX Gold Investment Holdings Limited, a limited company incorporated under the laws of the British Virgin Islands. As at the date of this Bidder’s Statement, BCX Gold is a wholly-owned subsidiary of BPM (a wholly-owned subsidiary of Baiyin). Baiyin, CADF, Long March and CITIC Kingview have formed a consortium (“Consortium”), entered into exclusivity arrangements and intend to enter into a shareholders’ agreement with respect to their holdings in BCX Gold prior to the end of the Offer Period. The shareholders’ agreement, once entered into, will supersede the existing exclusivity arrangements between the Consortium members and may result in changes to the relevant interests of those parties (and their intermediate investment vehicles) in Gold One as described in this Bidder’s Statement. Any such changes will be notified to the ASX as required. As at the date of this Bidder’s Statement, BCX Gold has a sole director, Mr SUN Long (see details below). BCX Gold will, at or before the end of the Offer Period, be held by the Consortium as follows:
Baiyin Non-Ferrous Group Co. Limited 60% China-Africa Development Fund 30% Long March Capital Limited and CITIC Kingview Capital Management Co. Ltd (as co-managers of Changxin Element Development LLP) 10%
(Section 3.4 notes the possibility that a further Consortium member may be introduced.) The directors of BCX Gold will, at or before the end of the Offer Period, be: • SUN Long, MBA, age 42: Mr. Sun heads the Capital Markets Department of Baiyin, and has been an employee of Baiyin for more than 20 years. He was previously in charge of the restructuring of the Baiyin Group into its current corporate form. Mr. Sun was a representative of the Chinese People’s Political Consultative Conference for the Baiyin Municipality; • ZHOU Chao, MBA, age 40: Mr. Zhou is the Managing Director and Head of Advisory Services at CADF, focusing on M&A transactions. He has nearly 20 years experience in various areas including commodity trading, investment, and risk management. Mr. Zhou helped lead the establishment of CADF in 2007. Prior to that, Mr. Zhou was a portfolio manager in CDB, who was responsible for credit portfolio allocation and overall risk management. He helped develop the first credit default swap products for CDB and worked on the implementation of Basel II. Mr. Zhou is on the board of Tin-Can Island Container Terminal Ltd. in Nigeria. Mr. Zhou holds a MBA from the Australian Graduate School of Management in the University of New South Wales; • ZHANG Bin, M.Sc., age 32: Mr. Zhang Bin has been an asset manager for the CADF since 2007. He has over 10 years experience in commercial and investment banking in China and France. Mr. Zhang worked with Hainan Airlines from 2000 and was the manager of finance. Mr. Zhang has a masters degree of econometric application from the Université du Littoral Côte d’Opale in France; and • BAO Xueqin, MBA, age 42: Mr. Bao is the Vice-General Manager of CITIC Kingview, a private equity investment management firm held jointly by the CITIC Group, CITIC Trust and CITIC Capital. Mr. Bao has been working with the CITIC Group for 13 years, and has been in securities, investment banking and investment management for more than 15 years. Subject to the constituent documents of BCX Gold, additional directors may be appointed to the board of BCX Gold following the date of this Bidder’s Statement. BCX Gold has been incorporated solely for the purpose of holding the interests of the Consortium acquired through the Transaction, as well as those acquired through the AGC Acquisition. For details on the AGC Acquisition, see section 6.3. BCX Gold has no other operations and does not carry on any other trading activities. Each of the Consortium members holds, or may hold, its equity interest in BCX Gold through intermediary wholly-owned special purpose vehicles (as shown in the diagram in section 3.3).
3.2 history and Ownership The members of the Consortium are established and based in the PRC. The Consortium is led principally by Baiyin, which is a Gansu-based resources smelting and extraction company with a history of more than 50 years in China. CADF is primarily a financial investor, and its parent, the CDB is also interested in exploring opportunities for follow-on debt and acquisition financing arising from an investment in Gold One. Long March is a privately-held investment manager based in Beijing and focussed on the transactional management of resources investments by Chinese capital abroad. Long March co-invests in transactions such as the investment in Gold One, which will be made through co-managed PRC-based and offshore investment vehicles. CITIC Kingview is an investment management company, established in 2007, and held jointly by CITIC Group, CITIC Trust and CITIC Capital, which focuses on the management of Chinese corporate and individual capital investing in various sectors including
For personal use only use personal For real estate, private equity, pre-IPOs and resources. Further details on each of the Consortium members are set out below. (a) Baiyin Nonferrous Group Co. Limited Baiyin was founded in 1954 and is a resources extraction and processing enterprise of substantial scale based in the Gansu Province, West China. Baiyin was restructured to its current corporate form in November 2008 when CITIC Group made a RMB 3.3 billion controlling investment in it, and, as at the end of 2010, has total and net assets of approximately RMB 20.4 billion and RMB 8.3 billion respectively, generating sales of RMB 15.1 billion. Baiyin has developed and owns certain proprietary smelting technologies, and operates facilities involved in the processing of copper, lead, zinc, nickel, silver, platinum and gold. Baiyin also owns and operates 9 mines, of which 6 are underground mines and 3 are open pit operations, extracting copper, lead, zinc, gold, quartz and fluorspar.
12 | BCX Gold Investment Holdings Ltd Baiyin is a registered participant on the London Metals Exchange in the trading of zinc and lead. Baiyin’s major shareholders are: • the CITIC Group, which holds 3.7% directly and 41.1% through CITIC Guoan; and • the Gansu Provincial Government, which holds 47% through Gansu State Assets Supervision and Administration Commission and other provincial government controlled entities. The CITIC Group was founded in 1979 pursuant to a State Council mandate. It is a diversified investment group wholly held by the Ministry of Finance of the PRC (“MOF”). MOF is responsible for the state’s fiscal and taxation policies, and is overseen by the State Council. The CITIC Group’s holdings in the finance industry include: • CITIC Trust and CITIC Securities, which are respectively the largest trust and securities companies in China; and • CITIC Bank, a leading commercial bank in China. The CITIC Group also has substantial holdings in real estate, infrastructure, telecoms, construction, manufacturing and resources. As at the end of 2010, CITIC Group had total and net assets of approximately RMB 2.5 trillion and RMB 273 billion, and generated sales of approximately RMB 264 billion. (b) China-Africa Development Fund CADF was established in 2007 pursuant to the Beijing Summit for China-Africa Cooperation in 2006, and is the first Chinese equity investment fund to focus specifically on direct investments in Africa. The fund has a target size of US$5 billion and has been funded with approximately US$1 billion to date. As at 31 December 2010, the registered capital of CADF was RMB 7.7 billion, of which cash and tradeable financial assets accounted for RMB 4.7 billion. All of the equity funds of CADF are designated for the sole purpose of direct investment into African countries. Since its inception, CADF has made investments in a variety of sectors ranging from resources to telecoms in over 20 African countries. CADF is a wholly owned subsidiary of the CDB. CDB is a state-owned bank dedicated to strengthening the competitiveness of the PRC and improving the living standards of its people. As at the end of 2010, CDB had total and net assets of RMB 5.1 trillion and RMB 403 billion. CDB’s shareholders are the MOF (51.3%) and Huijin (48.7%). Huijin is a state-owned investment holding company incorporated to hold equity investments made in key state-owned financial institutions, as directed and authorised by the State Council. (c) Long March Capital Limited and CITIC Kingview Capital Management Co. Ltd (as co-managers of Changxin Element Development LLP) Long March is a privately-held investment manager based in Beijing and focused on the transactional management of resources investments by Chinese capital abroad. It co-manages Chinese and offshore capital and co-invests in transactions which it originates and manages, such as the investment in Gold One, which will be made through Changxin Element Development LLP, a Tianjin-based limited partnership investment vehicle, and a number of offshore investment vehicles (as shown in the diagram in section 3.3). Investors in these entities comprise of Chinese corporates, high net worth individuals and other asset managers. Long March is jointly owned by Messrs Alex Yao and Clement Kwong. The principal partners of Long March have over 60 years of combined private equity investment, investment banking and M&A advisory experience, and have collectively managed capital investments of over US$1 billion, and completed investments and advisory assignments involving more than US$5 billion in aggregate. Long March has a strong network of relationships in the Chinese mining and consumer sectors, among state financial institutions and leading state-owned enterprises, and in the Hong Kong capital markets. The investment in Gold One made by Changxin Element Development LLP will be co-managed by Long March and CITIC Kingview as shareholders of the general partner of Changxin Element Development LLP. CITIC Kingview, based in Beijing, is an investment management company, established in 2007, and held jointly by CITIC Group, CITIC Trust and CITIC Capital, which focuses on the management of Chinese corporate and individual capital investing in various sectors. CITIC Kingview is an industry leader in the use of the investment trust structure to raise Chinese capital, and in the management of private equity and other direct investments of such assets. CITIC
Kingview and Long March have established co-managed partnerships for a series of outbound investments in the natural resources sector. For personal use only use personal For
Bidder’s Statement | 13 3.3 ownership structure of BCX Gold As noted in section 3.1, as at the date of this Bidder’s Statement, BCX Gold is a wholly-owned subsidiary of BPM (a wholly-owned subsidiary of Baiyin). At or before the end of the Offer Period, the ownership structure of BCX Gold will, subject to section 3.4, be as follows.
CITIC Kingview Capital Long March Capital Ltd. Management Co. Ltd.
Co-Managers
Changxin Element Development LLP
Baiyin Nonferrous China-Africa Group Co. Ltd. Development Fund CX Elements Investment Ltd. (BVI)
Baiyin Precious Metals China-Africa Gold CX Gold Investment Investment Ltd. Investment Holding Co. Holdings Ltd. (BVI) Limited (BVI)
60% 30% 10%
BCX Gold Investment Holdings Ltd. (BVI)
3.4 additional Consortium member – China Africa Xinyin Investment Management Co. Ltd (as manager of Xinyin Global Resources Fund LLP) An additional member of the Consortium, XGR, is in the process of corporate formation, and is expected to be introduced to the Consortium in mid-August. If XGR joins the Consortium, the interests in the Consortium will be held as follows:
Baiyin Non-Ferrous Group Co. Limited 50% China-Africa Development Fund 30% Long March Capital Limited and CITIC Kingview Capital Management Co. Ltd (as co-managers of Changxin Element Development LLP) 10% China Africa Xinyin Investment Management Co. Ltd (as manager of Xinyin Global Resources Fund LLP) 10% XGR is expected to be established in mid-August as a limited partnership investment vehicle based in Shanghai, PRC, targeting at least RMB 3.0 billion of assets under management. It is anticipated that XGR’s interest in BCX Gold will be held through intermediate offshore investment vehicles
(as shown in the diagram in section 3.5). For personal use only use personal For XGR will be managed by XGR Manager, an investment management company incorporated in Beijing with registered capital of RMB 200 million. The interests in XGR Manager will be held as follows:
CADF 35% CITIC Guoan Group 30% Baiyin 30% Long March 5%
14 | BCX Gold Investment Holdings Ltd XGR Manager is an independently managed company, however, members of the board of directors and the investment committee of XGR include directors from CITIC Guoan, CADF, Baiyin and Long March. XGR is expected to have a fund life of approximately 5 to 7 years, and will be seeded by CADF, CITIC Guoan, Baiyin and XGR Manager in the amount of approximately RMB 1.3 billion. Other limited partners will include Chinese institutional investors including Chinese corporates, financial institutions and other asset managers, who have provided indicative commitments of about RMB 2.5 billion. The primary investment focus of XGR will be the development and extraction of mineral resources in international emerging markets alongside strategic investors such as Baiyin. XGR may also invest in Chinese resources companies which are expanding abroad, and seeking to list on a reputable securities exchange in the near term. XGR, once formed, will be an associate of each of the current members of the Consortium.
3.5 ownership structure of BCX Gold following the addition of XGR If XGR joins the Consortium, the ownership structure of BCX Gold will be as follows.
China Africa Xinyin Investment Management Co. Ltd.
Manager CITIC Kingview Capital Long March Capital Ltd. Management Co. Ltd. Xinyin Global Resources Fund LLP Co-Managers
XY Global Changxin Element Resources Co Ltd. Development LLP
Baiyin Nonferrous China-Africa Group Co. Ltd. Xinyin Global Development Fund CX Elements Resources Investment Investment Ltd. Holding Ltd. (BVI) (BVI)
Baiyin Precious Metals XGR China-Africa Gold CX Gold Investment Investment Ltd. Gold Investment Investment Holding Co. Holdings Ltd. (BVI) Ltd. (BVI) Limited (BVI)
50% 10% 30% 10%
BCX Gold Investment Holdings Ltd. (BVI)
If XGR does not join the Consortium, Gold One will release an ASX announcement to this effect following receipt of written notification from BCX
Gold. The Offer will proceed irrespective of whether XGR joins the Consortium. For personal use only use personal For
Bidder’s Statement | 15 4. information on Gold One
4.1 disclaimer The information on Gold One in this Bidder’s Statement has been prepared by Gold One and has not been independently verified by BCX Gold. Accordingly, BCX Gold does not, subject to the Corporations Act, make any representation or warranty, express or implied, as to the accuracy or completeness of that information. The information on Gold One set out in this Bidder’s Statement should not be considered comprehensive. For more information on Gold One, see the Explanatory Memorandum. In addition, the Corporations Act requires the directors of Gold One to provide a Target’s Statement to Gold One Shareholders in response to this Bidder’s Statement, setting out certain material information concerning Gold One. The Target’s Statement accompanies this Bidder’s Statement.
4.2 overview of Gold One and its principal activities (a) History In January 2006, Uranium One Africa Limited (formerly Aflease Gold and Uranium Resources Limited), acquired control of Sub Nigel Gold Mining Company Limited, a public company incorporated in South Africa and listed on the JSE, by way of a reverse takeover, which then became known as Aflease Gold Limited. Gold One (formerly BMA Gold Limited) was incorporated in Australia on 24 August 2000 and has a primary listing on the ASX and a secondary listing on the JSE. In May 2009, Gold One inward listed on the JSE and acquired the entire issued share capital in Gold One Africa (formerly Aflease Gold Limited), which at the time, had a primary listing on the JSE. As a consequence of the acquisition, Gold One Africa delisted from the JSE and is now a wholly owned subsidiary of Gold One. (b) Operations (i) Map of operations The location of Gold One’s key projects is illustrated in the map below:
(ii) Modder East Gold One Africa’s flagship operation is the newly built Modder East mine. Modder East is the first new mine to be built in the East Rand Basin region in 28 years and distinguishes itself from most other gold mines in South Africa because of its shallow nature.
For more information on the Modder East operations, see section 6.2(b) of the Explanatory Memorandum. For personal use only use personal For
16 | BCX Gold Investment Holdings Ltd (iii) Exploration projects Gold One has a substantial project pipeline which includes projects at various stages of development from greenfields exploration to advanced projects at a pre-feasibility stage. Ventersburg Project The Ventersburg Project in the Free State Goldfield represents Gold One’s most advanced exploration asset, on which a pre- feasibility study is currently being undertaken. For more information on the Ventersburg Project, see section 6.2(c) of the Explanatory Memorandum. Megamine In 2009, Gold One initiated a geological desktop modelling study of its Megamine assets with the aim of better understanding the mineralisation distribution of the Main Reef and Big Pebble Marker Reef targets. The Megamine assets represent the down-dip and strike extensions of the historic Sub Nigel and Vlakfontein Gold Mines in the East Rand Goldfield. For more information on the Megamine assets, see sections 6.2(c) and 6.4(b) of the Explanatory Memorandum. East Rand Boundary Project Gold One is also developing its East Rand Boundary Project (“ERBP”). The ERBP considers the shallow portions (less than 500 metres below surface) of Gold One’s New Kleinfontein, Turnbridge and Modder North properties, where the Main Reef has previously been selectively mined. For more information on ERBP, see 6.2(c) of the Explanatory Memorandum. (iv) Other projects Gold One is also progressing two greenfields projects, namely the Tulo Project in Mozambique and the Etendeka Project in Namibia. The Tulo Project is situated 20 kilometres south of the Tanzanian border in north-western Mozambique and represents a Proterozoic shear hosted deposit. Gold One’s Etendeka Project in Namibia is a greenfield project hosting a potential iron oxide- copper-gold deposit. Both of these projects are still at an early exploration phase with no resources yet declared. (c) Mineral Resources and Ore Reserves Gold One’s Mineral Resources and Ore Reserves as at December 2010 are set out in section 6.3 of the Explanatory Memorandum. (d) Recent transaction highlights For a summary of the acquisition of Rand Uranium and the Goliath Gold transaction, see section 6.4 of the Explanatory Memorandum. (e) Gold One’s strategy Gold One’s primary focus is on exploring, developing and mining shallow, low technical risk and high margin ore bodies. Modder East, Ventersburg and the East Rand Boundary Project are consistent with this overall strategy. It is envisaged that Goliath Gold will host Gold One’s medium depth assets, allowing these assets to be suitably progressed without detracting from Gold One’s primary focus on shallow, low technical risk targets. For more information on Gold One’s strategy, see section 6.5 of the Explanatory Memorandum. (f) Current directors As at the date of this Bidder’s Statement, the Gold One Directors are: • Mark Kenneth Wheatley (Non-executive Chairman); • Neal John Froneman (President and Chief Executive Officer); • Christopher Damon Chadwick (Chief Financial Officer); • Barry Erskine Davison (Non-executive Director); • Kenneth Victor Dicks (Non-executive Director); • William Bruce Harris (Non-executive Director); • Sandile Swana (Non-executive Director); and • Kenneth John Winters (Non-executive Director).
4.3 publicly available information
Gold One is a company listed on ASX and JSE and is subject to the periodic and continuous disclosure requirements of the Corporations Act, ASX For personal use only use personal For and JSE. Gold One’s annual report for the year ended 31 December 2010 was given to ASX on 28 February 2011.
Bidder’s Statement | 17 5. BCX Gold’s intentions
5.1 introduction This section explains BCX Gold’s intentions, on the basis of the facts and information concerning Gold One which are known to it and the existing circumstances affecting the business of Gold One, in relation to the following: (a) the continuation of the business of Gold One; (b) any major changes to be made to the business of Gold One, including any redeployment of the fixed assets of Gold One; and (c) the future employment of the present employees of Gold One. The intentions of BCX Gold are formed jointly in consultation with the members of the Consortium, led principally by Baiyin. As Baiyin is a strategic investor, with operating businesses in the resources industry, many of the views are formulated by Baiyin, while CADF and Long March, being financial investors, provide a view from the perspective of financing and capital markets considerations. The primary intention of BCX Gold is to maximise the value of Gold One for Gold One Shareholders over the long term.
5.2 review BCX Gold and its advisers have reviewed certain information that has been publicly released on Gold One, its current activities and its plans for the future, have conducted limited due diligence and had limited discussions with Gold One in relation to its businesses. However, BCX Gold does not currently have knowledge of all material information, facts and circumstances that are necessary to assess the operational, commercial, taxation and financial implications of its current intentions. Consequently, final decisions on all of these matters have not been made, and any decisions already made may be subject to change. Following the close of the Offer, the Initial Subscription and Additional Subscription, BCX Gold will, to the extent that information is available to it, conduct a review of the operations, assets, structure and employees of Gold One in light of that information. Final decisions will only be reached after that review and in light of all material facts and circumstances. As such, statements referred to in this section are statements of current intention only which may change as new information becomes available or circumstances change. The statements referred to in this section 5 should be read in this context.
5.3 intentions upon acquisition of more than 60% but less than 90% of Gold One Shares As explained in section 1.1, the Offer forms part of the Transaction under which BCX Gold seeks, via a combination of the Offer and the Subscription, to acquire more than 60% of Gold One Shares. This section sets out BCX Gold’s intentions if BCX Gold were to be successful in this regard without becoming entitled to compulsorily acquire the outstanding Gold One Shares. (a) Securities exchange listings It is the intention of BCX Gold to maintain the existing ASX and JSE listings of Gold One and quotation of Gold One Shares, to the extent permitted by the applicable listing rules of each of the securities exchanges. (b) Corporate development and financing It is the intention of BCX Gold to support the strategic vision of Gold One to expand its operations through organic growth and acquisitions, and to become a consolidator of medium and junior gold assets in Africa, and subsequently in international emerging markets. To that extent, BCX Gold intends to support the expansion of production at Gold One’s existing Modder East mine, the ongoing exploration and drilling of its assets under development, and the integration and improvement of the Rand Uranium gold operations, if the proposed acquisition is successful. BCX Gold will further leverage the resources and network of the Consortium to assist Gold One in identifying suitable acquisition targets consistent with Gold One’s portfolio of assets and management capabilities. BCX Gold will also leverage the financing relationships of the Consortium to assist Gold One in securing necessary financing for operational expansion and acquisitions on competitive terms. Should equity funding be required, BCX Gold expects that all Gold One Shareholders at such time will be able to participate on similar terms on
a pro-rata basis. For personal use only use personal For
18 | BCX Gold Investment Holdings Ltd (c) Board independence It is the intention of BCX Gold that Gold One maintains a strong board of Gold One Directors that operates independently of, and separately to, BCX Gold. To this extent BCX Gold will seek the nomination of three non-executive directors to a board consisting of 11 members (including 6 independent directors) (see the next paragraph for details). Pursuant to the terms of the TIA, if BCX Gold acquires more than 60% of Gold One Shares following the end of the Offer Period, BCX Gold has the right to nominate persons to the Gold One Board on a proportional basis, and in any case no less than one member for each complete 15% shareholding BCX Gold holds in Gold One. The same nomination right will apply to all committees of Gold One. Subject to the same conditions set out above, BCX Gold and Gold One have agreed to transitional Gold One Board arrangements for the period of 12 months after the Initial Subscription and, to the extent required, the Additional Subscription are made. The Gold One Board during that time will comprise the following 11 members: • SUN Yalei, as Chairman and as nominated by BCX Gold pursuant to its nomination right; • Neal John Froneman as Chief Executive Officer; • Christopher Damon Chadwick as Chief Financial Officer; • Mark Kenneth Wheatley as Lead Independent Director (as contemplated in the JSE Listings Requirements and the King Code of Corporate Governance in South Africa (King III)); • Five independent Gold One Directors (in addition to Mark Wheatley), comprising: • Kenneth John Winters; • Barry Erskine Davison; • Michael Henry Solomon; • Allan Hui LIU; and • Robert Tze Leung CHAN; • two non-executive Gold One Directors (in addition to SUN Yalei) nominated by BCX Gold pursuant to its nomination right, comprising: • LIAO Ming; and • ZHOU Chao. Details of the proposed new Gold One Directors are set out as follows: • SUN Yalei, age 43. Mr SUN is a director of CITIC Group, Assistant to the CEO of the CITIC Group and the Vice-Chairman and CEO of CITIC Guoan Group. Mr. Sun is also Vice-Chairman of Baiyin Nonferrous Group Co. Ltd. Mr. Sun was a graduate of the People’s University of Industry and Economic Management. He was previously CEO and Vice-Chairman of CITIC Guoan Information Industry Co. Ltd. Mr. Sun has no personal interest in the Transaction. He will be serving as the Non-Executive Chairman of the Gold One Board. • Michael Henry SOLOMON, BSc, MDP, age 59. Mr. Solomon has 31 years professional experience as a mining engineer in gold, platinum, diamonds and base metals and some 17 years as a consulting engineer with SRK Consulting, EL Bateman and The Mineral Corporation. From 1992 to 1994, he was a member of the African National Congress Minerals and Energy Group and after the 1994 elections he served as Senior Policy Analyst and Head of Minerals Policy with the Minerals and Energy Policy Center. He was CEO of Wesizwe Platinum Limited from 2004 and retired in 2010. • Allan Hui LIU, MBA, age 55. Mr. Liu is a Managing Partner of PAG Capital and has over 25 years experience in advising and executing investments in China, particularly in the consumer and retail sectors. Prior to working at PAG Limited, Mr. Liu worked with American International Group, Inc. (“AIG”) from 1995 and was the President and co-Founder of the China Retail Fund (co-sponsored by AIG). From 1981, Mr. Liu advised on entry strategies into China to many of the world’s leading multinational companies such as Procter & Gamble, American Standard, Revlon and ProLogis and he has been instrumental in executing over US$2 billion in foreign direct investments. Mr. Liu’s private equity investment experience started in 1991, where he was an adviser to the Blackstone Group for its China expansion strategy. In addition to sitting on the Board of several portfolio companies, Mr. Liu is also a founding Board Member and Vice Chairman of Beijing Private Equity Association. Mr. Liu has no personal interest in the Transaction. He will be serving as an Independent Non-Executive Director on the Gold One Board.
• Mr. Robert Tze Leung CHAN, MBA, age 60. Mr Chan is an experienced banker with over 37 years experience in both For personal use only use personal For commercial and investment banking having worked in London, Malaysia, Singapore, and is the Chief Executive Officer of United Overseas Bank, Hong Kong. He has served as Independent Non-Executive Director of Noble Group Limited since 1996. He holds the Bachelor of Science (Economics) Hons and Master of Business Administration degrees, and is a Fellow of the Hong Kong Institute of Directors. Mr. Chan has no personal interest in the Transaction. He will be serving as an Independent Non-Executive Director on the Gold One Board. • LIAO Ming, age 53. CEO and Director of Baiyin, Mr. Liao joined Baiyin in 1982 and has served with Baiyin for nearly 30 years, starting off as a machine operator in a smelting facility. Mr. Liao has no personal interest in the Transaction. He will be serving as an Non-Executive Director on the Gold One Board.
Bidder’s Statement | 19 • ZHOU Chao, MBA, age 40. Mr. Zhou is the Managing Director and Head of Advisory Services at CADF, focusing on M&A transactions. He has nearly 20 years experience in various areas including commodity trading, investment, and risk management. Mr. Zhou helped lead the establishment of CADF in 2007. Prior to that, Mr. Zhou was a portfolio manager in CDB, who was responsible for credit portfolio allocation and overall risk management. He helped develop the first credit default swap products for CDB, and worked on the implementation of Basel II. Mr. Zhou is on the board of Tin-Can Island Container Terminal Ltd. in Nigeria. Mr. Zhou holds a MBA from the Australian Graduate School of Management in the University of New South Wales. Mr. Zhou has no personal interest in the Transaction. He will be serving as an Non-Executive Director on the Gold One Board. It is possible, although BCX Gold has formed no view in this regard, that following the 12 month period, BCX Gold, in exercise of its agreement with Gold One, will seek the reconstitution of the Gold One Board in a way which results in the Gold One Board not comprising of a majority of independent directors. Committees to oversee audit, safety, remuneration and appointments (among others) will be chaired by independent directors. In the debate over certain resolutions involving matters conflicting directly with Consortium interests, non-executive directors appointed by BCX Gold who are not independent will excuse themselves. Subject to any applicable laws, this obligation will not apply to the independent directors nominated by BCX Gold, namely Allan Hui LIU and Robert Tze Leung CHAN. BCX Gold further expects that the Gold One Board may require access to independent legal and financial advice on material dealings with Consortium members to determine whether terms are fair and reasonable and to ensure they are at arms-length. (d) Registered office and operational management of Gold One The registered office of Gold One will remain in Sydney and the effective place of management will remain in Johannesburg for the foreseeable future. It is the intention of BCX Gold that Gold One’s management continues to operate independently of the Consortium. Oversight of Gold One’s management team will be left to the Gold One Board. The management team of Gold One will operate the company in accordance with an annual business plan and operating budget to be approved by the Gold One Board, on which BCX Gold will have representation through three non-executive directors to be appointed post-completion of the Offer, Initial Subscription and, to the extent required, Additional Subscription. Substantial and material capital expenditure and investment decisions will be set out in the business plan, and operational decisions involving the deployment of assets and employees will be made by the management. (e) Sharing of resources It is the intention of BCX Gold to leverage off the technical and management resources of Baiyin to assist Gold One in the ongoing improvements, where possible, of its operations. To that extent, a technical and development sub-committee will be established within Gold One with the participation of technical support staff from Baiyin and operational management staff of Gold One, with the aim of studying and evaluating the gains of transfer or exchange of technologies, methodologies and other industry know-how between Baiyin and Gold One. It is also the intention of BCX Gold to leverage the geological and metallurgical teams of Baiyin for the evaluation of possible acquisition properties in Asia. In addition, BCX Gold intends to assist Gold One in evaluating its financing options in and securing access to capital markets in Asia, in particular Hong Kong. Leveraging off the Consortium’s networks, BCX Gold intends to assist Gold One with establishing a permanent presence in Hong Kong and gaining awareness among institutional investors in Asia. In due course, BCX Gold may assist Gold One to seek a listing on an international stock exchange in Asia, such as the Hong Kong Stock Exchange. (f) Dividend policy To the extent that Gold One is generating excess cashflows which it is unable to reinvest either in its operations to generate returns higher than its prevailing equity returns, or to finance identified value accretive acquisitions, BCX Gold will seek the payment of dividends to Gold One Shareholders. In the period of expansion following the completion of the Offer, when Gold One will be expanding its existing operations through capital expenditure and acquiring other consolidation targets in the industry, it is not envisaged that Gold One will be a dividend paying company. (g) Limitations on intentions To the extent that Gold One does not become a wholly owned subsidiary of BCX Gold and there are minority Gold One Shareholders, BCX Gold intends that the directors of Gold One appointed by it will act at all times in accordance with their fiduciary duties and that all requisite shareholder approvals and other legal requirements are complied with in pursuing any of the intentions outlined above. These requirements may involve the approval of minority Gold One Shareholders to implement any particular objective. The requirement to have regard to those fiduciary duties in the context of a partly owned company and the possible requirements of minority Gold One Shareholder approval may prevent the particular objective being achieved.
It should be noted that BCX Gold has not currently identified any particular initiative where these considerations may be relevant. For personal use only use personal For
20 | BCX Gold Investment Holdings Ltd 5.4 intentions upon acquisition of 90% or more of Gold One Shares This section sets out BCX Gold’s current intentions if it acquires 90% or more of the Gold One Shares and is entitled to proceed to compulsorily acquire the outstanding Gold One Shares. (a) Compulsory acquisition If it becomes entitled to do so under the Corporations Act, BCX Gold may: (i) give notices to compulsorily acquire any outstanding Gold One Shares in accordance with section 661B of the Corporations Act; (ii) give notices to Gold One Shareholders to compulsorily acquire any outstanding Gold One Shares in accordance with section 664C of the Corporations Act. BCX Gold has made no decision as to whether it would seek to exercise its right to compulsorily acquire any outstanding Gold One Shares. If it is required to do so under sections 662A and 663A of the Corporations Act, BCX Gold intends to give notices to Gold One Shareholders and holders of Convertible Bonds and Options offering to acquire their Gold One Shares, Convertible Bonds and Options (as applicable) in accordance with sections 662B and 663B of the Corporations Act. (b) Directors BCX Gold will comply with its contractual obligations in relation to the composition of the Gold One Board for a period of 12 months after the completion of the Initial Subscription and, to the extent required, Additional Subscription. Subject to these obligations, BCX Gold will consider replacing all non-executive directors of Gold One not nominated by it, and all independent directors of the Gold One Board and of any company in respect of which Gold One has nominee directors, with its own nominees. (c) Securities exchange listings If BCX Gold exercises its right to compulsorily acquire all outstanding Gold One Shares, at the conclusion of the compulsory acquisition process, BCX Gold intends to arrange for Gold One to be removed from the official list of the ASX and the JSE.
5.5 intentions upon acquiring less than 60% of Gold One Shares BCX Gold reserves its right to declare the Offer free from the 60% Minimum Interest Condition but has no current intention to do so. If BCX Gold does waive this Condition, BCX Gold intends to seek the appointment of a number of its representatives on the Gold One Board under the TIA (where it holds more than 50.1% of Gold One Shares) by agreement or otherwise following a requisition of a meeting of Gold One Shareholders for that purpose if necessary having regard to its proportionate interest in Gold One. BCX Gold will seek to gain a more detailed understanding of all the businesses, assets and operations of Gold One to evaluate the performance, profitability and prospects of Gold One and will endeavour to implement its intentions outlined in section 5.4 of this Bidder’s Statement to the extent it is able to do so. In any event, for a 12 month period after the Initial Subscription and, to the extent required, the Additional Subscription are made, and provided BCX Gold holds more than 50.1% of Gold One Shares, the Gold One Board will comprise the 11 members described in section 5.3(c).
5.6 intentions generally Except for the changes and intentions referred to in this section 5, BCX Gold intends, based on the information presently known to it: (a) to continue the business of Gold One; (b) not to make any major changes to the business of Gold One or the deployment of Gold One’s assets; and
(c) to continue the employment of Gold One’s employees. For personal use only use personal For
Bidder’s Statement | 21 6. share capital information
6.1 capital structure of Gold One According to Gold One, the total number of securities in Gold One as at the last practicable date before the date of this Bidder’s Statement, being 1 August 2011, is as follows: (a) 808,990,251 Gold One Shares; (b) 86,674,332 Options; and (c) 500 Convertible Bonds.
6.2 details of relevant interests and voting power in Gold One As at the date of this Bidder’s Statement and immediately prior to the first Offer being sent, BPM (an associate of BCX Gold) has a relevant interest in 142,689,350 Gold One Shares, pursuant to the AGC Acquisition described in section 6.3. BPM is wholly owned by Baiyin. Each of CADF, China-Africa Gold Investment Holding Co. Ltd (the entity through which CADF will invest in BCX Gold), Long March and CITIC Kingview (and the investment vehicles through which those entities hold their interests in BCX Gold) and BCX Gold has a relevant interest in Gold One Shares in which BPM has a relevant interest by virtue of their ability to control the disposal of these shares. Consequently, all of these entities have: (a) a relevant interest in 142,689,350 Gold One Shares; and (b) voting power of 17.64% in Gold One, as at the date of this Bidder’s Statement, and as at the date immediately before the first Offer is sent. In addition, BPM and BCX Gold have an understanding that the Gold One Shares acquired through the AGC Acquisition will be transferred to BCX Gold at cost. Notwithstanding this transfer, BPM will, by virtue of its shareholding in BCX Gold, maintain its relevant interest in those Gold One Shares (and similarly obtain a relevant interest in any Accepted Shares). Moreover, by virtue of their ability to control the disposal of Accepted Shares pursuant to the exclusivity arrangements described in section 3.1, CADF, China-Africa Gold Investment Holding Co. Ltd (the entity through which CADF will invest in BCX Gold) and Long March and CITIC Kingview (and the investment vehicles through which those entities hold their interests in BCX Gold) will have a relevant interest in any Gold One Shares acquired by BCX Gold under the Offer. As noted in section 3.1, any changes to the relevant interests of the various parties described above as a result of the conclusion of a shareholders’ agreement amongst the Consortium parties will be notified to ASX as required. BPM has informed BCX Gold that BPM does not intend to accept the Offer for the Gold One Shares that it holds.
6.3 consideration provided for Gold One securities during previous four months Except as set out below, BCX Gold and its associates have not acquired or disposed of Gold One Shares during the period of four months including on the day immediately before the date of the Offer. On 18 April 2011, Baiyin, the controlling shareholder of BCX Gold, entered into a share purchase agreement with Navada, a subsidiary of African Global Capital (SA) (Pty) Limited, in relation to 142,689,350 Gold One Shares. In connection with this transaction, Baiyin agreed to pay Navada A$75,625,355.50, being A$0.53 for each Gold One Share. Baiyin nominated BPM, a company it also controls, to be the purchaser under the share purchase agreement. BPM has since acquired this interest. BPM and BCX Gold have an understanding that the Gold One Shares acquired through the AGC Acquisition will be transferred to BCX Gold at cost.
6.4 inducing benefits given during previous four months Except as set out in this Bidder’s Statement, neither BCX Gold nor any of its associates has, during the period of four months ending on the day immediately before the date of the Offer, given, offered or agreed to give, a benefit to another person where the benefit was likely to induce the other person, or an associate, to: (a) accept an Offer; or
(b) dispose of Gold One Shares, For personal use only use personal For which benefit was not offered to all holders of Gold One Shares under the Offer.
22 | BCX Gold Investment Holdings Ltd 7. funding
The consideration payable by BCX Gold for the acquisition of Gold One Shares to which this Offer relates will be satisfied wholly in cash and, if the Offer is accepted in respect of all of the outstanding Gold One Shares (assuming all Convertible Bonds and Options are converted or exercised), will be approximately A$524 million (inclusive of applicable transfer taxes). BCX Gold will fund the consideration payable under the Offer using cash provided to it by the Consortium in proportion to the members’ holdings of the equity interests in BCX Gold. BCX Gold does not intend to seek or enter into any borrowings to fund any portion of the payment consideration. The Offer is not subject to any financing conditions. Consortium members will be expected to fund BCX Gold’s cash requirements through a combination of equity and non-interest bearing shareholders’ loans in full upon the close of the Offer. However, under the TIA, all of BCX Gold’s financial and legal obligations are unconditionally and irrevocably guaranteed by Baiyin, the principal Consortium member, until the completion of the Offer (“BCX Gold Guarantee”). As at 21 June 2011, Baiyin has maintained RMB 3.15 billion (A$460 million as at 22 June 2011) in aggregate cash deposits at the CITIC Bank, Agricultural Bank of China (“ABC”), China Construction Bank, Bank of China and the Industrial Commercial Bank of China (“ICBC”). It maintains revolving credit facilities of RMB 3.99 billion (A$583 million as at 21 June 2011) with the ICBC and of RMB 3.0 billion (A$439 million as at 21 June 2011) with the ABC. Baiyin also has a RMB 1.0 billion credit facility with CITIC Bank of which RMB 668 million (A$98 million as at 22 June 2011) is available. Pursuant to this transaction, Baiyin has secured an indicative offer by the CDB for a new credit facility of US$196 million (A$185 million as at 21 June 2011), subject to final due diligence, regulatory approvals and documentation. Save for the conditions set out above, the facilities will be made available to fund the payment consideration pursuant to the Offer. Baiyin’s credit is rated AA+ by ICBC and AAA by ABC. Baiyin will be able to meet its obligation under the BCX Gold Guarantee to provide BCX Gold with all amounts BCX Gold requires to make payment pursuant to the Offer as and when those payments are due to be made, and in whatever form and manner BCX Gold requires. The funding obligations of CADF are met through equity funds injected by CDB. As of 13 June 2011, CADF holds government securities in a bond account with the China Everbright Bank with a value of RMB 2.52 billion (A$368 million as at 21 June 2011). Of this balance, RMB 1.61 billion (A$235 million as at 21 June 2011) may be converted to cash on demand. The investment partnerships managed by Long March and CITIC Kingview (and the relevant investment vehicles) will be issuing capital calls for the investment consideration required to fund the equity interest in BCX Gold. Capital calls will be made to investor clients including high net worth individuals and corporate clients in China and offshore in a combination of RMB and US$. The specific investment partnerships for investment into Gold One are not funded on the date of this Bidder’s Statement. XGR is expected to be established in mid-August, whereupon funding in the amount of approximately RMB 1.3 billion (A$123 million as at 21 June 2011) committed by CADF, CITIC Guoan, Baiyin and China-Africa Xinyin Investment Management Ltd will be put in place through a series of capital calls. Additional indicative commitments from other investors will be realised following XGR’s establishment, however it is anticipated that the funding commitments from CADF, CITIC Guoan and Baiyin will be more than adequate to meet XGR’s funding obligations pursuant to its participation in the Offer. BCX Gold believes it has a reasonable basis for forming and holding the view that it will be able to pay the consideration required for the Offer, and
the Offer is not subject to any financing conditions. For personal use only use personal For
Bidder’s Statement | 23 8. australian taxation considerations
8.1 introduction Gold One Shareholders are specifically informed that the outline below regarding Australian taxation considerations: • does not constitute tax advice by BCX Gold to any Gold One Shareholder, • is an indicative guide of BCX Gold’s understanding of the possible tax consequences indicated below; • does not deal with the potential Australian income tax implications which may arise from the conversion of Convertible Bonds or exercise of the Options; and • should not be relied upon by a Gold One Shareholder in making a decision on the tax consequences of their decision to acquire, hold or dispose of any Gold One Shares to BCX Gold. Each Gold One Shareholder should seek or consult their own taxation adviser regarding the consequences of acquiring, holding or disposing of their Gold One Shares. Further, the outline is indicative of the principal Australian income tax consequences possibly applicable to a Gold One Shareholder who disposes of Gold One Shares under the Offer. This outline is based on the current provisions of the Income Tax Assessment Act 1936 (Cwlth) and the Income Tax Assessment Act 1997 (Cwlth) and the regulations made under those Acts, taking into account BCX Gold’s understanding of the current administrative practices of the Australian Taxation Office. The outline does not otherwise take into account or anticipate changes in the law, whether by way of judicial decision or legislative action, nor does it take into account tax legislation of countries apart from Australia. The outline is not exhaustive of all possible Australian income tax considerations that could apply to Gold One Shareholders. In particular, the summary is only relevant to those Gold One Shareholders who hold their shares on capital account and it does not address all tax considerations applicable to Gold One Shareholders that may be subject to special tax rules, such as banks, insurance companies, tax exempt organisations, superannuation funds, dealers in securities, Gold One Shareholders which hold the Gold One Shares on behalf of another person or Gold One Shareholders who acquired their Gold One Shares as part of an employee share scheme. For Gold One Shareholders who are non-residents of Australia for tax purposes, it is assumed that the Gold One Shares are not held and have never been held, as an asset of a permanent establishment of that Gold One Shareholder in Australia.
8.2 taxation on the disposal of Gold One Shares If you accept the Offer, you will be treated as having disposed of your Gold One Shares for Australian income tax purposes.
8.3 australian resident Gold One Shareholders You will realise a capital gain in connection with the disposal of a Gold One Share to the extent that the amount you receive (or will receive) for the disposal of that Gold One Share is more than the cost base of that Gold One Share. You will realise a capital loss to the extent that the amount you receive (or will receive) is less than the reduced cost base of the Gold One Share. Capital losses can usually only be offset against capital gains you realise in the same income year or in later income years. The cost base of a Gold One Share should be the total amount you paid (or are deemed to have paid) for the Gold One Share, your acquisition costs and other costs relating to the holding and disposal of the Gold One Share, to the extent to which you have not claimed an income tax deduction for such costs. The reduced cost base of a Gold One Share is usually determined in a similar, but not identical, manner. There are a number of circumstances which may result in your cost base or reduced cost base being calculated in a different manner to that outlined above. Please ensure that you consult your tax adviser to confirm the cost base or reduced cost base of your Gold One Shares. Any net capital gain should be included in your assessable income for that income year. Broadly, your net capital gain in respect of an income year will be calculated by aggregating all of your capital gains realised in that income year and reducing that amount by your capital losses realised in that income year and any available net capital losses from prior years. Gold One Shareholders who are individuals, trusts or complying superannuation funds may be eligible for discount capital gains treatment in respect of a Gold One Share if they have held that Gold One Share for at least 12 months. Companies are not eligible for discount capital gains treatment. The above comments will not apply to you if you buy and sell shares in the ordinary course of business, or if you acquired the shares for resale at a
profit. In those cases, any gain is generally taxed as ordinary income. We recommend that those Gold One Shareholders seek their own tax advice. For personal use only use personal For
24 | BCX Gold Investment Holdings Ltd 8.4 non-resident Gold One Shareholders If you are not a resident of Australia for income tax purposes, you will generally not have to pay Australian tax on any capital gain when you dispose of your Gold One Shares, unless, among other things, you hold a “non-portfolio interest” in Gold One. If you do not hold a “non-portfolio interest” in Gold One, any capital gain made on the disposal of your Gold One Shares should not be subject to income tax in Australia. You will hold a “non-portfolio interest” in Gold One if you (together with your associates) own, or owned, throughout a 12 month period during the two years preceding the sale of your Gold One Shares, 10% or more of (broadly) all of the shares in Gold One. Please consult your tax adviser to determine whether you hold a “non-portfolio interest” in Gold One. If you buy and sell shares in the ordinary course of business, or acquired the shares for resale at a profit, any gain could be taxed in Australia as ordinary income and not as a capital gain (subject to any relief available under a double tax treaty that Australia has concluded with your country of residence). Again, you should seek your own tax advice. Further, you should seek advice from your tax adviser as to the taxation implications of accepting the Offer in your country of residence.
8.5 stamp duty
Any stamp duty payable on the transfer of Gold One Shares to BCX Gold pursuant to the Offer will be paid by BCX Gold. For personal use only use personal For
Bidder’s Statement | 25 9. south African taxation considerations
9.1 introduction Gold One Shareholders are specifically informed that the outline below regarding South African taxation considerations: • does not constitute tax advice by BCX Gold to any Gold One Shareholder, • is an indicative guide of BCX Gold’s understanding of the possible tax consequences indicated below; and • should not be relied upon by a Gold One Shareholder in making a decision on the tax consequences of their decision to acquire, hold or dispose of any Gold One Shares to BCX Gold. Each Gold One Shareholder should seek or consult their own taxation adviser regarding the consequences of acquiring, holding or disposing of their Gold One Shares. The outline is only an indicative outline of certain South African tax consequences relating to the acceptance of the Offer, and relates only to the position of individual and corporate Gold One Shareholders who: (a) are South African tax residents (except in so far as express reference is made to the treatment of non-South African residents), and (b) hold their Gold One Shares beneficially as a capital investment otherwise (in the case of individuals) than under an employer-related share incentive plan. The outline is based on current South African tax legislation and practice currently in force. The outline further does not take into consideration any subjective decisions, mindset or intentions of any Gold One Shareholder. The comments below may not apply to you if you buy and sell shares in the ordinary course of business, if you acquired the shares for resale at a profit or hold the shares as trading stock. In those cases, any gain is generally taxed as ordinary income.
9.2 Basis of taxation The South African income tax system is based on a residence system for South African tax residents and on a source basis for non-South African tax residents. If you are an individual, please consult your taxation adviser if you are uncertain whether you qualify as a South African tax resident or not. A person other than a natural person will be a South African tax resident if it is incorporated, established or formed in South Africa, or has its place of “effective management” in South Africa.
9.3 capital gains tax (a) General Gold One Shareholders will be treated as having disposed of their Gold One Shares for proceeds equal to the cash consideration received in terms of the Offer. A capital gain will be realised where such proceeds are in excess of the base cost of the Gold One Shares and a capital loss will be realised where such proceeds are less than the base cost of the Gold One Shares. (b) Individual South African tax residents The capital gain arising from the disposal of any Gold One Shares (after setting off any capital loss allowed), less the annual exclusion (ZAR 17,500 for the year of assessment ending 28 February 2012) will be subject to income tax at the individual’s marginal rate of tax (maximum of 40 per cent). Only 25 per cent of the net capital gain is included in taxable income, resulting in a maximum effective rate of tax on capital gains of 10 per cent. Capital losses may be set off against capital gains realised in the same or any subsequent year of assessment, subject to certain conditions. (c) Corporate South African tax residents The taxable portion of a capital gain on the disposal of any Gold One Shares, will be subject to income tax at the normal corporate rate of tax (currently 28 per cent). Only 50 per cent of the net capital gain is included in taxable income, resulting in a maximum effective rate of tax on capital gains of 14 per cent, where such gains are not distributed by the recipient Gold One Shareholder. However, to the extent that the gain is distributed as a dividend by a corporate Gold One Shareholder, the Gold One Shareholder’s effective tax rate would take into account the effect of secondary tax on companies of 10 per cent. This would result in an effective tax rate (for capital gains tax purposes)
For personal use only use personal For of 21.82 per cent. Capital losses may be set off against capital gains realised in the same or any subsequent year of assessment, subject to certain conditions.
26 | BCX Gold Investment Holdings Ltd (d) Non-South African tax residents Non-South African tax residents are only subject to capital gains tax in South Africa in respect of: (i) the disposal of immovable property situated in South Africa, or any interest (as prescribed) or right of whatever nature of that person to or in immovable property situated in South Africa; or (ii) any asset which is attributable to a permanent establishment of that person in South Africa. On the basis that neither of those requirements is met, non-South African tax resident Gold One Shareholders will not incur capital gains tax in South Africa on the disposal of their Gold One Shares. Please consult your taxation adviser to determine whether any of the requirements is applicable to you. Please note that should you, together with any connected person in relation to you, hold more than 19 per cent of Gold One Shares, one of these requirements may be met. (e) Securities transfer tax No securities transfer tax will be payable by Gold One Shareholders as a result of accepting the Offer, as the securities transfer tax will be
paid by BCX Gold. For personal use only use personal For
Bidder’s Statement | 27 10. additional information
10.1 arrangements with Gold One A copy of the TIA was attached to Gold One’s announcement made on the Announcement Date. Gold One Shareholders can obtain a free copy of the TIA by contacting Gold One’s Company Secretary in South Africa, Pierre Kruger, on +27 11 726 1047 or [email protected], or in Australia, Brett Snell on +61 2 9963 6400 or [email protected]. A brief summary of the TIA is set out below. (a) Conditions precedent to the Subscription The Subscription is subject to the following conditions precedent. Each of these conditions must be satisfied or waived for the Subscription to occur (except for the condition in paragraph (ix) which only relates to the Adjustment Subscription). (i) The Gold One Shareholders’ Resolution is approved The Gold One Shareholders’ Resolution must be approved by the requisite majority of Gold One Shareholders at the Gold One Shareholder Meeting. BCX Gold will not waive this condition. (ii) Independent Expert’s conclusion The Independent Expert must conclude that the Transaction is fair and reasonable to Gold One Shareholders and maintain that conclusion until the end of the Offer Period. Gold One and BCX Gold have agreed that the conclusion of the Independent Expert as set out in the Independent Expert’s Report will satisfy this condition (so long as the Independent Expert maintains that conclusion until the end of the Offer Period). (iii) Offer is unconditional BCX Gold must give a notice under section 630(3) of the Corporations Act stating that the Offer is free of all Conditions. (iv) BCX Gold receives Gold One Shares the subject of acceptances under the Offer The Offer Period must end and BCX Gold must have paid the consideration under the Offer (being A$0.55 per Gold One Share) to accepting Gold One Shareholders in respect of the relevant Gold One Shares. (v) Satisfaction or waiver of all Conditions to the Offer All of the Conditions to the Offer must be satisfied or waived. A summary of some of these Conditions is set out in section 10.1(b). See Appendix 2 for full details on the Conditions. (vi) No Insolvency Event by BCX Gold or Baiyin From the Announcement Date until the end of the Offer Period, BCX Gold or Baiyin must not become subject to insolvency-type events. (vii) No breach of a warranty given by Gold One From the Announcement Date until the end of the Offer Period, a warranty given by Gold One in section 19.1 of the TIA to the extent it relates to Gold One and section 19.2 of the TIA must not be found to be misleading, or otherwise not correct, in a material respect. (viii) No breach of a warranty given by BCX Gold From the Announcement Date until the end of the Offer Period, a warranty given by BCX Gold in section 19.1 of the TIA to the extent it relates to BCX Gold and section 19.3 of the TIA must not found to be misleading, or otherwise not correct, in a material respect. (ix) Annual gold production by Gold One Gold One does not meet its forecast 2011 production target of 120,000 ounces of gold, as set out in Gold One’s financial results for that year. This condition applies only in relation to the Adjustment Subscription and does not need to be satisfied or waived
for the Initial Subscription or Additional Subscription to occur. For personal use only use personal For
28 | BCX Gold Investment Holdings Ltd (b) Conditions to the Offer The Offer is subject to a number of Conditions, including the following: (i) Gold One Shareholders’ Resolution is approved The Gold One Shareholders’ Resolution must be approved by the requisite majority of Gold One Shareholders at the Gold One Shareholder Meeting. BCX Gold will not waive this Condition. (ii) Independent Expert’s conclusion The Independent Expert must conclude that the Transaction is fair and reasonable to Gold One Shareholders and maintain that conclusion until the end of the Offer Period. Gold One and BCX Gold have agreed that the conclusion of the Independent Expert as set out in the Independent Expert’s Report will satisfy this Condition (so long as the Independent Expert maintains that conclusion until the end of the Offer Period). (iii) 60% Minimum Interest Condition During the Offer Period, BCX Gold must obtain a 60% interest in Gold One on a Fully Diluted Basis. This Condition is not a typical “minimum acceptance condition” under a standard takeover offer – it does not require 60% of all Gold One Shares to be accepted into the Offer. Instead, this Condition requires the following deemed interests to be aggregated in order to determine whether it has been satisfied: • the relevant interests obtained by BCX Gold as a result of acceptances under the Offer – this depends on the number of Gold One Shares that are accepted into the Offer; • the Gold One Shares that BCX Gold would receive if the Gold One Shares under the Initial Subscription (being 375,000,000 Gold One Shares) and the maximum possible number of Gold One Shares under the Additional Subscription (being 188,679,245 Gold One Shares) were issued to BCX Gold – this is a deemed interest that has already been attributed to BCX Gold for the purpose of this calculation, even though the Initial Subscription and Additional Subscription are yet to complete; • any other Gold One Shares which BCX Gold, Baiyin or any related body corporate of either of them has purchased or agreed to purchase – this includes the Gold One Shares acquired under the AGC Acquisition; and • the Gold One Shares that would be held by BCX Gold, Baiyin or any related body corporate of either of them if any Options or Convertible Bonds held by them were to be exercised or converted into Gold One Shares – as at the date of this Bidder’s Statement, no Options or Convertible Bonds are held by these persons. The 60% aggregate interest must be determined on a Fully Diluted Basis, meaning that it is assumed that all Options and Convertible Bonds currently on issue are exercised or converted into Gold One Shares. As at the last practicable date before the date of this Bidder’s Statement, being 1 August 2011, at least 277,719,520 Gold One Shares are required to be accepted into the Offer in order for this condition to be satisfied (representing approximately 41.68% of the number of Gold One Shares on issue which are capable of being accepted into the Offer, being 666,300,901 Gold One Shares). (iv) Regulatory approval During the Offer Period, BCX Gold must obtain all necessary approvals required for the Offer and Subscription to be made. This includes receiving approvals from the following entities: • Australian Foreign Investment Review Board; • Financial Surveillance Department of the South African Reserve Bank; • South African Competition Authorities; • Chinese National Development and Reform Commission; • Chinese Ministry of Commerce; • Chinese State Administration of Foreign Exchange; • Namibian Competition Commission; and
• any self-regulatory organisation established under statute or any stock exchange, including ASX and JSE. For personal use only use personal For This is not an exhaustive list of the Conditions to the Offer. See Appendix 2 for a full description of the Conditions.
Bidder’s Statement | 29 (c) Additional arrangements Pursuant to the TIA, Gold One and BCX Gold have agreed to the following arrangements: (i) Exclusivity During the period from the Announcement Date until the end of the Offer Period and subject to the fiduciary duties of the Board of Directors of Gold One, Gold One will not solicit any competing proposals to the Transaction, will not participate in discussions in relation to any competing proposal and, subject to the consent of BCX Gold, will not solicit or facilitate any due diligence on Gold One. (ii) Matching right During the period from the Announcement Date until the end of the Offer Period, Gold One must inform BCX Gold of a superior proposal to the Transaction and allow BCX Gold a right to match that proposal with a proposal that is more favourable to Gold One Shareholders (as a whole). (iii) Break fees Gold One and BCX Gold are liable to pay a “break fee” of A$5,000,000 in certain circumstances. Gold One must pay the break fee if any of the following occurs in the period between the Announcement Date until the end of the Offer Period, unless Gold One and BCX Gold agree otherwise: • (competing proposal) a competing proposal to the Transaction becomes open for acceptance and, as a result, a person acquires 20% of the total number of Gold One Shares or, if the proposal is a takeover offer, that offer becomes unconditional; • (recommendation) BCX Gold does not acquire an aggregate interest in more than 60% of Gold One (calculated in the same way as the 60% Minimum Interest Condition set out in section 10.1(b)(iii)) and Gold One changes its recommendation to no longer support the Transaction (unless the Independent Expert changes its conclusion about the Transaction); • (superior proposal) Gold One terminates the TIA where a superior proposal arises; • (breach of exclusivity clauses) Gold One breaches clause 10 of the TIA, which sets out the exclusivity and matching right arrangements described in sections 10.1(c)(i) and 10.1(c)(ii); • (breach of Conditions) Gold One or any of its Directors does or omits to do anything which causes certain Conditions to be breached or unable to be fulfilled; • (prescribed event or material adverse change) a “prescribed event” or “material adverse change” occurs, the TIA is terminated and the prevention of that event was within the reasonable control of Gold One, in certain circumstances as set out in the TIA (note: “prescribed event” and “material adverse change” are defined terms in the TIA); • (material breach of TIA) Gold One materially breaches the TIA and BCX Gold terminates the TIA as a result; or • (Gold One projects) With regard to certain projects of Gold One, Gold One enters into arrangements which involve the issue of Gold One Shares at a price lower than the Offer Price or the consideration under the arrangement is more than 5% of the market capitalisation of Gold One at the time of entering into those arrangements. BCX Gold must pay the break fee if it materially breaches the TIA and Gold One terminates the TIA as a result. (d) Participation rights Subject to the following conditions being satisfied: • the Offer, the Initial Subscription and the Additional Subscription having completed; • BCX Gold being the registered holder of at least 50.1% of all Gold One Shares on issue; and • all necessary confirmations / waivers from ASX being obtained, BCX Gold has the right, but not the obligation, to participate in any proposed offer by Gold One of Gold One Shares or any other securities that may convert into Gold One Shares (subject to certain exceptions). The terms and conditions of this offer to BCX Gold will be the same as the proposed offer, with the number of securities being offered to BCX Gold being effectively that amount which will allow BCX Gold to
maintain its percentage shareholding in Gold One. For personal use only use personal For
30 | BCX Gold Investment Holdings Ltd (e) Nomination rights Subject to certain conditions, BCX Gold has the right to nominate persons to the Board of Directors of Gold One on a proportional basis. Transitional arrangements regarding the Gold One Board structure have also been agreed. Further details of these nomination rights and arrangements are set out in section 4.3(c). (f) Proposed benefits to management Subject to certain conditions described below, BCX Gold and Gold One have agreed under Schedule 7 to the TIA to provide certain benefits to specific members of Gold One’s management team. As noted in section 6.4, none of these benefits are likely to have the effect of inducing any member of Gold One’s management team to accept the Offer or dispose of Gold One Shares. As at the date of this Bidder’s Statement, the relevant members of Gold One’s management team that are to receive these proposed benefits are as follows (together, the “Key Executives”): • Neal John Froneman, Chief Executive Officer; • Christopher Damon Chadwick, Chief Financial Officer; • Izak Johannes Marais, Senior Vice President: RSA Operations; • Sydney John Maurice Caddy, Senior Vice President: Projects and Exploration; • Richard Andrew Stewart, Senior Vice President: Business Development; and • Pierre Baart Kruger, Senior Vice President: General Counsel and Company Secretary. The arrangements set out in Schedule 7 to the TIA contemplate that other persons may be included at a later date and would also receive these proposed benefits. The intention of these arrangements is to ensure that the Key Executives are retained by Gold One notwithstanding the anticipated change in control of the Company as a result of the Transaction. Due to the interests the Key Executives have in receiving these proposed benefits, the Key Executives have voluntarily undertaken that neither they nor any of their associates will vote on the Gold One Shareholders’ Resolution. While these proposed benefits have been agreed between Gold One and BCX Gold, they are subject to the following conditions: • the Offer Period must have come to an end, the Offer having first become unconditional; • BCX Gold, Baiyin and any related body corporate of either of them becoming the registered holder of, in aggregate, at least 50.1% of all Gold One Shares on issue; • review by a third party executive compensation firm (except in the case of the retention bonus payments discussed in section 10.1(f)(ii) below, which is not subject to this review); • the approval of Gold One’s remuneration committee; and • satisfaction of all regulatory requirements under the Listing Rules, Corporations Act and any other applicable law, including the approval of Gold One Shareholders. Other than the proposed retention payments described in section 10.1(f)(ii), Gold One Shareholders are not being asked to approve these proposed benefits at the Gold One Shareholder Meeting. To the extent required and subject to the Transaction proceeding to completion, Gold One Shareholders may be asked to approve these proposed benefits at some time in the future, in which case a separate notice of meeting and explanatory memorandum will be provided detailing the benefits to be considered, and if thought fit approved at that meeting. If BCX Gold controls Gold One at the time that such benefits are put to Gold One Shareholders in general meeting, it is likely that those benefits would be approved. Further details of the proposed benefits are set out below. With the exception of the proposed retention payments, it is possible that the final form of the proposed benefits will be different to that initially agreed between BCX Gold and Gold One as a result of the various conditions set out above, including the review of the proposed benefits by the third party compensation firm. (i) Remuneration and terms of employment BCX Gold and Gold One have agreed that each Key Executive will be remunerated at a level at or above the industry standards relevant to Gold One from time to time with reference to the relevant peer group, and that this level will be no less than the current remuneration being provided to each Key Executive. It is also intended that appropriate non-solicitation and restraint terms will be negotiated with each Key Executive and incorporated
For personal use only use personal For into the current terms of the relevant Key Executive’s employment. (ii) Retention payments BCX Gold and Gold One have agreed that the following retention payments will be offered to the Key Executives in consideration of their increased responsibility and as an incentive to stay in the employment of Gold One: • for Neal John Froneman, A$1,485,000 in three equal instalments over a period of two years; and • for the Chief Financial Officer, Christopher Chadwick, ZAR 3,442,500 in three equal instalments over a period of two years;
Bidder’s Statement | 31 • for each other Key Executive, the equivalent of one and a half years’ salary at the rate set out in the current employment agreement of the relevant Key Executive (as varied in writing), plus an additional 25% of that accumulated amount in three equal instalments over a period of two years. The first instalment will be paid within 5 Business Days after the Initial Subscription is made and the other two instalments will be paid on the first and second anniversary of that date. Shareholder approval of the retention payments being offered to Neal Froneman and Christopher Chadwick is being considered at the Gold One Shareholder Meeting. The Offer and the Subscription are not conditional on that approval being obtained. See sections 14 and 15 of the Explanatory Memorandum for further details. (iii) Annual bonuses BCX Gold and Gold One have agreed that annual bonuses, in line with those paid in the past by Gold One, will continue to be paid subject to the satisfaction of key performance indicators to be agreed between BCX Gold, Gold One and each Key Executive. (iv) Performance rights BCX Gold and Gold One have agreed that Gold One will issue performance rights to the Key Executives. The terms of these performance rights, as currently proposed, are set out in paragraph 8.2 of Schedule 7 to the TIA and summarised below. In accordance with those terms, the vesting of the performance rights depends on two values calculated on the third and fifth anniversary of completion of the Initial Subscription and, to the extent required, Additional Subscription (“Calculation Dates”), being the: • “Incentive Value” – the average market capitalisation of Gold One over the 60 trading days before the relevant Calculation Date; and • “Base Value” – the total number of Gold One Shares on issue on completion of the Initial Subscription and Additional Subscription multiplied by the Offer Price, plus the aggregate value since that date of any equity raisings by Gold One, any equity raised from the conversion of any convertible securities, including Options, and the cost to BCX Gold of any financial assistance provided by BCX Gold. The performance rights will vest if the Incentive Value exceeds the Base Value by a minimum amount, being 12% (compounded annually). The number of Gold One Shares issued to the Key Executives upon the vesting of the performance rights depends on the extent to which the Incentive Value exceeds the Base Value. Assuming that: • only the Initial Subscription (and not the Additional Subscription or the Adjustment Subscription) occurs; and • the Incentive Value exceeds the Base Value by the minimum amount described above on the Calculation Dates (which assumes a Gold One Share price of A$0.62 on the third anniversary and A$0.69 on the fifth anniversary), then, on the vesting of the performance rights: • on the third anniversary, 6,977,085 Gold One Shares (representing approximately 0.59% of the total number of Gold One Shares that would be on issue at that time) would be issued to the Key Executives, of which: • 1,744,271 Gold One Shares (representing approximately 0.15% of the total number of Gold One Shares that would be on issue at that time) would be issued to Neal Froneman; • 4,535,106 Gold One Shares (representing approximately 0.38% of the total number of Gold One Shares that would be on issue at that time) would be issued to a group of “Executive Vice Presidents”, which, as at the date of this Bidder’s Statement, is expected to include Christopher Chadwick. These Gold One Shares are to be apportioned to each member of that group (based on remuneration level and length of service); and • 697,709 Gold One Shares (representing approximately 0.06% of the total number of Gold One Shares that would be on issue at that time) would be issued to a group of “Senior Vice Presidents”, which, as at the date of this Bidder’s Statement, is expected to include all the other Key Executives (to be apportioned to each member based on remuneration level and length of service), subject to a maximum of 139,542 Gold One Shares (representing approximately 0.01% of the total number of Gold One Shares that would be on issue at that time) being issued to each member of that group; and • on the fifth anniversary, 9,930,397 Gold One Shares (representing approximately 0.83% of the total number of Gold One
For personal use only use personal For Shares that would be on issue at that time) would be issued to the Key Executives, of which: • 2,482,599 Gold One Shares (representing approximately 0.21% of the total number of Gold One Shares that would be on issue at that time) would be issued to Neal Froneman; and • 6,454,758 Gold One Shares (representing approximately 0.54% of the total number of Gold One Shares that would be on issue at that time) would be issued to a group of “Executive Vice Presidents”, which, as at the date of this Bidder’s Statement, is expected to include Christopher Chadwick. These Gold One Shares are to be apportioned to each member of that group (based on remuneration level and length of service); and
32 | BCX Gold Investment Holdings Ltd • 993,040 Gold One Shares (representing approximately 0.08% of the total number of Gold One Shares that would be on issue at that time) would be issued to a group of “Senior Vice Presidents”, which, as at the date of this Bidder’s Statement, is expected to include all the other Key Executives (to be apportioned to each member based on remuneration level and length of service), subject to a maximum of 198,608 Gold One Shares (representing approximately 0.02% of the total number of Gold One Shares that would be on issue at that time) being issued to each member of that group. (v) Potential offer for Options and any resulting Gold One Shares Key Executives who hold Options as at the date of this Bidder’s Statement intend to: • exercise half of their Options to obtain the resulting Gold One Shares; and • accept those Gold One Shares into the Offer. Pursuant to the arrangements set out in Schedule 7 to the TIA, the Key Executives understand that subject to: • the Offer Period under the Offer ending, having first become unconditional; • BCX Gold, Baiyin or any related body corporate of either of them becoming the registered holder of, in aggregate, at least 50.1% of all Gold One Shares on issue; and • the Key Executives holding on to their remaining Options (and any Gold One Shares resulting from the exercise of those Options) for a period of two years after the Initial Subscription and, to the extent required, Additional Subscription are made, BCX Gold will ultimately make an offer for their remaining Options (and any Gold One Shares resulting from the exercise of those Options) at a price equivalent to the Offer Price of A$0.55 for each Gold One Share. The Key Executives are not obliged to accept that offer and do not have the intention of doing so as at the date of this Bidder’s Statement. (g) Warranties and indemnities Gold One has given a number of warranties and specific indemnities in connection with the Transaction. These warranties and indemnities are set out in clauses 19.1, 19.2 and 19.5 of the TIA. (h) Termination rights Gold One and BCX Gold have a right to terminate the TIA in certain circumstances. These rights are set out in clause 22 of the TIA and include the right to terminate the TIA if all of the conditions precedent to the Initial Subscription and Additional Subscription are not satisfied by 31 December 2011.
10.2 due diligence For the purpose of confirming its assessment whether or not to acquire all of the Gold One Shares, BCX Gold was given access by Gold One to certain information concerning Gold One Group which has not been disclosed generally to Gold One Shareholders. None of the information to which BCX Gold was given access, and which has not since been publicly disclosed, is: (a) in the opinion of BCX Gold, of such a nature and quality which, if the information were generally available, a reasonable person would expect to have a material effect on the price or value of Gold One Shares; or (b) in the opinion of BCX Gold and except as disclosed in this Bidder’s Statement, would otherwise be material to a decision by a Gold One Shareholder whether or not to accept an Offer. However, the fact that BCX Gold’s decision to make the Offer was confirmed by its review of the information to which it had access may itself be
regarded as information material to the decision of a Gold One Shareholder whether or not to accept an Offer. For personal use only use personal For
Bidder’s Statement | 33 10.3 regulatory matters FIRB On 27 May 2011, FIRB approval for the AGC Acquisition and the Offer was obtained under the Foreign Acquisitions and Takeovers Act on the basis of the shareholders of BCX Gold being as described in section 3.1. FIRB approval is presently being sought for XGR to be introduced to the Consortium. BCX Gold and BPM are foreign persons for the purposes of the Foreign Acquisitions and Takeovers Act as a result of the direct and indirect interest in BCX Gold and BPM of state owned entities in the PRC. EXCHANGE CONTROL APPROVAL On 14 July 2011, the Financial Surveillance Department of the South African Reserve Bank granted approval for the Transaction. JSE The JSE has been provided with the documents in respect of the Transaction and has not raised any objection thereto. SOUTH AFRICAN TAKEOVER REGULATION PANEL The South African Takeover Regulation Panel has been provided with the documents in respect of the Transaction and has not raised any objection thereto. PRC APPROVALS The AGC Transaction, as well as the Offer and Subscription set out in the TIA, are subject to the Consortium and BCX Gold obtaining relevant approvals (in respect of outbound investments in specific sectors, consistency with state policies, exceeding certain investment amounts, establishing offshore special purpose vehicles and the remittance of foreign exchange abroad, among other matters) from the PRC government authorities including: • National Development and Reform Commission (“NDRC”); • Ministry of Commerce (“MOFCOM”); and • State Administration of Foreign Exchange (“SAFE”). In respect of the AGC Transaction, due to the value of the transaction not exceeding the prescribed limit of US$100 million in investment value, filings for the approvals have been made and approvals were obtained from the provincial counterparts of each of the above regulatory authorities on 19 May 2011 and 16 June 2011. Filings for approval of the Offer and Subscription have been submitted to the NDRC, and will be submitted to MOFCOM upon receiving NDRC approval. It is expected that, in the normal course, these approvals will be received on or about 15 October 2011, and approval by SAFE will follow approximately two weeks afterwards. These three approvals are applied for and received serially. SOUTH AFRICAN COMPETITION APPROVAL On 30 June 2011, the merger notification in respect of the Transaction required to be filed with the South African Competition Authorities in terms of the South African Competition Act was filed. It is expected that the South African Competition Authorities will approve the Transaction by no later than 23 September 2011. NAMIBIAN COMPETITION APPROVAL On 6 July 2011, the merger notification in respect of the Transaction required to be filed with the Namibian Competition Act was filed. It is expected that the Namibian Competition Commission will approve the Transaction by no later than 23 September 2011. ASIC modifications BCX Gold has obtained from ASIC a modification of: • section 631(1)(b) of the Corporations Act to allow BCX Gold to make the Offer within 2 months and 28 days after the Announcement Date; and • section 648C of the Corporations Act to allow the Bidder’s Statement to be to sent to Gold One Shareholders by normal post from within
South Africa to Gold One Shareholders in South Africa. For personal use only use personal For
34 | BCX Gold Investment Holdings Ltd 10.4 consents (a) Statements based on publicly available information This Bidder’s Statement includes statements which are made in, or based on statements made in, documents lodged with ASIC or announced on the company announcements platform of ASX by Gold One (including the Notice of Meeting, Explanatory Memorandum, Independent Expert’s Report and Target’s Statement). Under the terms of ASIC Class Order 01/1543, the parties making those statements are not required to consent to, and have not consented to, the inclusion of those statements in this Bidder’s Statement. BCX Gold has arranged with Gold One for a copy of the above documents to be made available to you free of charge. If you would like to receive a copy of any of these documents, please contact Gold One’s Company Secretary in South Africa, Pierre Kruger, on +27 11 726 1047 or [email protected], or in Australia, Brett Snell on +61 2 9963 6400 or [email protected]. (b) Consent to the inclusion of statements This Bidder’s Statement also contains statements made by, or statements said to be based on statements made by: (i) Gold One; (ii) Baiyin; (iii) CADF; (iv) Long March; (v) CITIC Kingview; (vi) XGR Manager; and (vii) BPM. Each of the persons named above has consented to the inclusion of each statement it has made in the form and context in which the statements appear in this Bidder’s Statement, has consented to the references to those statements in the form and context in which they are included in this Bidder’s Statement, and has not withdrawn those consents at the date of this Bidder’s Statement. To the maximum extent permitted by law, each of Baiyin, CADF, Long March and CITIC Kingview expressly disclaims and takes no responsibility for any part of this Bidder’s Statement, other than any statement or information which has been included in this Bidder’s Statement with the consent of that party.
10.5 other material information Except as set out elsewhere in this Bidder’s Statement, there is no other information that is: (a) material to the making of a decision by a Gold One Shareholder whether or not to accept an Offer; and (b) known to BCX Gold, and has not previously been disclosed to the Gold One Shareholders. The directors of BCX Gold are of the opinion that the information that Gold One Shareholders and their professional advisers would reasonably require to make an informed assessment whether to accept the Offer is: • the information contained in the Notice of Meeting (including the information contained in the Explanatory Memorandum and the Independent Expert’s Report); • the information contained in the Target’s Statement (to the extent that the information is not inconsistent or superseded by information in this Bidder’s Statement); • the information contained in Gold One’s releases to the ASX, and in the documents lodged by Gold One with ASIC before the date of this Bidder’s Statement; and • the information contained in this Bidder’s Statement. The directors of BCX Gold have assumed, for the purposes of preparing this Bidder’s Statement, that the information in the Target’s Statement (except to the extent that information has been provided and verified by or on behalf of BCX Gold) is accurate. However, the directors of BCX Gold do not take
any responsibility for the contents of the Target’s Statement and are not to be taken as endorsing, in any way, any or all statements contained in it. For personal use only use personal For
Bidder’s Statement | 35 11. Glossary
11.1 definitions The following defined terms are used throughout this Bidder’s Statement unless the contrary intention appears or the context requires otherwise: 60% Minimum Interest Condition means the Condition in paragraph (b) of Appendix 2. A$ means Australian Dollar. Acceptance Forms means the blue Australian Acceptance Form and the yellow SA Acceptance Form accompanying the Offer or any replacement or substitute acceptance forms provided by or on behalf of BCX Gold and Acceptance Form means either of them as the context requires. Accepted Shares means the Gold One Shares in respect of which a Gold One Shareholder accepts the Offer. Additional Subscription means the additional subscription by BCX Gold for up to 188,679,245 Gold One Shares at an issue price of A$0.53 per Gold One Share on the terms and conditions set out in the Explanatory Memorandum. Adjustment Subscription means the potential adjustment subscription by BCX Gold for up to a maximum of 492,002,621 Gold One Shares at no additional cost on the terms and conditions set out in the Explanatory Memorandum. AGC Acquisition means the agreement dated 18 April 2011 between Baiyin and Navada pursuant to which Baiyin agreed to acquire Gold One Shares previously held by African Global Capital (SA) (Pty) Limited, as further described in section 6.3. Announcement Date means 16 May 2011, being the date of announcement of the Transaction (including the Offer). Approval means a licence, permit, authority, consent, approval, order, exemption, waiver, ruling or decision. ASIC means Australian Securities and Investments Commission. ASX means ASX Limited or Australian Securities Exchange, as appropriate. ASX Settlement means ASX Settlement Pty Limited (ABN 49 008 504 532), the body which administers the CHESS system in Australia. ASX Settlement Operating Rules means the settlement rules of ASX Settlement. ASX Settlement Participant means a participant under the ASX Settlement Operating Rules. Australian Acceptance Form means the blue Acceptance Form relating to the Offer which is being sent together with this Bidder’s Statement to Gold One Shareholders who are registered on the Gold One Australian Share Register for use by those Gold One Shareholders who wish to accept the Offer in relation to their Gold One Shares. Baiyin means Baiyin Non-Ferrous Group Co Ltd, a company registered under the laws of the PRC under Registration No. 620400000000010. BCX Gold means BCX Gold Investment Holdings Ltd (company number 1615265), a company incorporated in the British Virgin Islands. BCX Gold’s Takeover Transferee Holding means the holding of Gold One Shares on the CHESS subregister of BCX Gold established for the purposes of the Offer. Bidder’s Statement means this document, being the bidder’s statement of BCX Gold dated 3 August 2011 under Part 6.5 Division 2 of the Corporations Act relating to the Offer. BPM means Baiyin Precious Metals Investment Ltd (company number 1615241), a company incorporated in the British Virgin Islands. Broker means a person who is a share broker and a participant in CHESS. Business Day means a day (other than Saturday, Sunday or public holiday) on which banks are open for general banking business in all of Perth and Sydney, Australia, Johannesburg, South Africa and the Hong Kong Special Administrative Region and the PRC. CADF means China Africa Development Fund. CDB means China Development Bank Corporation. certificated or in certificated form means a Gold One Share on the Gold One South African Share Register which is not in uncertificated form (that is, not in Strate) and which is accordingly represented by a share certificate. CHESS means the Clearing House Electronic Subregister System, which provides for electronic share transfer in Australia.
For personal use only use personal For CHESS Holding means a holding of Gold One Shares on the CHESS subregister of Gold One. CITIC Guoan means CITIC Guoan Industry Information Co. Ltd. CITIC Kingview means CITIC Kingview Capital Management Co. Ltd. Closing Date means 7.00pm (Sydney time) / 10.00am (South African time) on 11 November 2011, unless extended or withdrawn. Common Monetary Area means South Africa, the Republic of Namibia and the Kingdoms of Lesotho and Swaziland. Computershare means Computershare Investor Services (Pty) Ltd, Gold One’s South African transfer secretaries.
36 | BCX Gold Investment Holdings Ltd Condition means a condition to the Offer set out in Appendix 2 of this Bidder’s Statement. Condition Period means the period beginning on the Announcement Date and ending at the end of the Offer Period. Consortium means the group of Chinese investors who hold or will hold a direct or indirect interest in BCX Gold at or before the end of the Offer Period, as described in section 3. Controlling Participant means the Broker or ASX Settlement Participant who is designated as the controlling participant for shares in a CHESS Holding in accordance with the ASX Settlement Operating Rules. Convertible Bond means a bond which may be convertible into Gold One Shares under its terms, which is on issue as at the Announcement Date. Corporations Act means the Corporations Act 2001 (Cwlth). CSDP means a South African Central Securities Depository Participant. Encumbrance means any: (a) security for the payment of money or performance of obligations, including a mortgage, charge, lien, pledge, trust, option, right of pre- emption, power, title retention, or flawed deposit arrangement; or (b) right, interest or arrangement which has the effect of giving another person a preference, priority or advantage over creditors including any right of set-off; or (c) right that a person (other than the owner) has to remove something from land (known as a profit à prendre), easement, public right of way, restrictive or positive covenant, lease, or licence to use or occupy; or (d) third party right or interest or any right arising as a consequence of the enforcement of a judgment, or any agreement to create any of them or allow them to exist. Exchange Control Regulations means the South African Exchange Control Regulations, 1961, as amended, promulgated in terms of section 9 of the South African Currency and Exchanges Act, 9 of 1993, as amended. Explanatory Memorandum means the explanatory memorandum accompanying, and forming part of, the Notice of Meeting. FIRB means the Foreign Investment Review Board. Foreign Acquisitions and Takeovers Act means the Foreign Acquisitions and Takeovers Act 1975 (Cwlth). Fully Diluted Basis means the basis where all convertible securities of Gold One on issue (that is, all Options and Convertible Bonds) are assumed to be exercised or converted into Gold One Shares. For the purpose of calculating figures on this Fully Diluted Basis, the conversion price of the Convertible Bonds has been assumed to be US$0.33, based on certain assumptions. Gold One means Gold One International Limited (ABN 35 094 265 746), a company incorporated in Australia and registered as an external company in South Africa under registration number 2009/000032/10. Gold One ADSs means American Depositary Shares representing Gold One Shares traded in the United States on the over the counter market. Gold One Australian Share Register means that part of Gold One’s register of Gold One Shareholders kept and maintained on behalf of Gold One by Boardroom Pty Limited in Australia. Gold One Board means the board of Gold One Directors. Gold One Director means a director of Gold One. Gold One Group means Gold One and its subsidiaries as at 16 May 2011. Gold One Projects means the Goliath Transaction, the proposed acquisition by Gold One of all of the shares in Rand Uranium (as announced by Gold One to ASX on 28 April 2011) and certain potential projects disclosed by Gold One to BCX Gold before the Announcement Date. Gold One Share means a fully paid ordinary share in the capital of Gold One. Gold One Shareholder means a registered holder of Gold One Shares. Gold One Shareholder Meeting means the meeting of Gold One Shareholders to be held on 7 September 2011 to consider the Gold One Shareholders’ Resolution and the resolution to approve certain retention payments to Neal Froneman and Christopher Chadwick. Gold One Shareholders’ Resolution means the resolution to be considered by Gold One Shareholders at the Gold One Shareholder Meeting
For personal use only use personal For to approve the Subscription as contained in the Notice of Meeting. Gold One South African Share Register means that part of Gold One’s register of Gold One Shareholders kept and maintained on behalf of Gold One by Computershare in South Africa. Goliath Gold means Goliath Gold Mining Limited. Goliath Transaction means the transaction between Gold One and Goliath Gold Mining Limited (a company incorporated in South Africa) publicly announced by Gold One on 12 November 2010. HIN means a Holder Identification Number, which is the number that starts with an “X”, allocated by your Controlling Participant, to identify a Gold One Shareholder with a CHESS Holding.
Bidder’s Statement | 37 Huijin means Central Huijin Investment Limited. Independent Expert means the independent expert appointed by Gold One, being KPMG. Independent Expert’s Report means the report prepared by the Independent Expert, a copy of which is set out in Annexure D of the Explanatory Memorandum. Initial Recommendation means the recommendation of the Gold One Board regarding the Transaction in the form set out in the joint public announcement of the Offer on ASX and JSE on the Announcement Date. Issuer Sponsored Holding means a holding of Gold One Shares on Gold One’s issuer sponsored subregister. Initial Subscription means the subscription for 375,000,000 Gold One Shares at an issue price of A$0.40 per Gold One Share on the terms and conditions set out in the Explanatory Memorandum. JSE means the JSE Limited, Registration No. 2005/022939/06, a public company incorporated in South Africa and licensed as an exchange under the South African Securities Services Act, 2004. Key Executives has the meaning given in section 10.1(f). KPMG means KPMG Corporate Finance (Aust) Pty Ltd. Law means all statutes, regulations, statutory rules, orders, and terms and conditions of any grant of approval, permission, authority or license of any Public Authority. Listing Rules means the official listing rules of ASX as from time to time amended or waived in their application to a party. Long March means Long March Capital Limited. Material Contract means a contract for the provision of goods or services to or by a member of the Gold One Group, the termination of which is reasonably likely to have a material adverse impact on the operation or reputation of the Gold One Group as a whole or an adverse impact on the profitability of the Gold One Group as a whole exceeding A$500,000 in any financial year of Gold One. Namibian Competition Act means the Competition Act, No. 2 of 2003, as amended. Namibian Competition Commission means the Namibian Competition Commission, a juristic person established in terms of section 4 of the Namibian Competition Act. Navada means Navada Trading (Proprietary) Limited. Notice of Meeting means the notice of the Gold One Shareholder Meeting sent by Gold One to Gold One Shareholders, a copy of which accompanies this Bidder’s Statement. Offer means the offer by BCX Gold on the Offer Terms to acquire Gold One Shares (and for the avoidance of doubt includes each such offer made to an individual Gold One Shareholder pursuant to that offer). Offer Period means the period commencing on 8 August 2011 and ending at 7.00pm (Sydney time) / 10.00am (South African time) on 11 November 2011, or such later date to which the Offer has been extended. Offer Price means A$0.55 per Gold One Share. Offer Terms means the terms and conditions of the Offer set out in Appendices 1 and 2 to this Bidder’s Statement. Option means an option to subscribe for a Gold One Share, which is on issue as at the Announcement Date. Public Authority means any governmental, semi-governmental, administrative, fiscal, judicial or quasi-judicial body, department, commission, authority, tribunal, agency or entity, whether in Australia or elsewhere, including the following entities: (a) South African entities: (i) South African Reserve Bank; (ii) South African Competition Authorities; and (iii) the South African Takeover Regulation Panel, being from 1 May 2011 the successor of the South African Securities Regulation Panel; (b) PRC entities; (i) National Development and Reform Commission;
For personal use only use personal For (ii) Ministry of Commerce; and (iii) State Administration of Foreign Exchange; (c) Namibian Competition Commission; and (d) any self-regulatory organisation established under statute or any stock exchange, including ASX and JSE, but excludes the Takeovers Panel, ASIC and any court that hears or determines proceedings under section 657G of the Corporations Act or proceedings commenced by a person specified in section 659B(1) of the Corporations Act in relation to the Offer except if the determination or decision materially increases the costs of the Transaction to BCX Gold or affects the viability of the Transaction.
38 | BCX Gold Investment Holdings Ltd PRC or China means the People’s Republic of China. Rand Uranium means Rand Uranium (Proprietary) Limited. Register Date means 3.00am (Sydney time) on 4 August 2011. Related Party has the same meaning as it would have in section 9 of the Corporations Act if all references in section 9 to “public company” were to “public company” or “proprietary company”. Rights means all accretions, rights or benefits of whatever kind attaching to or arising from Gold One Shares directly or indirectly after the date of this Bidder’s Statement, including but not limited to all dividends or other distributions and all rights to receive any dividends or other distributions, or to receive or subscribe for shares, stock units, notes, bonds, options or other securities, declared, paid or made by Gold One or a Subsidiary of Gold One. RMB means renminbi, the official currency of the PRC. SA Acceptance Form means the yellow Acceptance Form relating to the Offer which is being sent together with this Bidder’s Statement to Gold One Shareholders who are registered on the Gold One South African Share Register for use by those Gold One Shareholders who wish to accept the Offer in relation to their Gold One Shares. Sale Agreement means the sale of shares agreement to acquire 100% of Rand Uranium for a purchase price of US$250,000,000. South Africa or SA means the Republic of South Africa. South African Competition Act means the Competition Act, No. 89 of 1998, as amended. South African Competition Authority means collectively: (a) the South African Competition Commission, a juristic person established in terms of section 19 of the South African Competition Act; (b) the South African Competition Tribunal, a juristic person established in terms of section 26 of the South African Competition Act; and (c) the South African Competition Appeal Court, a court established in terms of section 36 of the South African Competition Act. SRN means a Securityholder Reference Number, which is the number which starts with an “I”, allocated by Gold One to identify a Gold One Shareholder with an Issuer Sponsored Holding. Strate means Strate Limited, a registered CSDP in South Africa, which operates as a clearing and settlement system for share transactions in respect of Gold One Shares listed on the JSE to be settled and the transfer of ownership recorded electronically. Subsidiary means a subsidiary as that term is defined in the Corporations Act. Subscription means, together, the Initial Subscription, the Additional Subscription and the Adjustment Subscription, further details of which are set out in the Explanatory Memorandum. Subscription Completion Date means the latest of the following: (a) 5 Business Days after the satisfaction (or waiver) of the conditions precedent to the obligations of the parties in respect of the Initial Subscription and Additional Subscription; and (b) any other date agreed between the parties in writing. Supplemental Notice means the supplemental information prepared by The Bank of New York Mellon and which will be sent to holders of Gold One ADSs. Takeovers Panel means the body called the Takeovers Panel continuing in existence under section 261 of the Australian Securities and Investments Commission Act and given certain powers under Part 6.10 of the Corporations Act. Target’s Statement means the target’s statement dated 3 August 2011 issued by Gold One under Part 6.5 Division 3 of the Corporations Act, a copy of which accompanies this Bidder’s Statement. TIA means the transaction implementation agreement between Gold One, BCX Gold and Baiyin, a copy of which was attached to Gold One’s announcement made on the Announcement Date (as amended, if applicable). Transaction means the Subscription and the Offer. uncertificated or in uncertificated form means a Gold One Share on the Gold One South African Share Register which is for the time being recorded on the Gold One South African Share Register as being held in uncertificated form and title to which may be transferred by means of Strate
For personal use only use personal For in South Africa. US$ means United States Dollar, the official currency of the United States. XGR means Xinyin Global Resources Fund LLP. XGR Manager means China Africa Xinyin Investment Management Co. Ltd. ZAR means South African Rand, the official currency of South Africa.
Bidder’s Statement | 39 11.2 General Interpretation The following rules of interpretation apply unless the contrary intention appears or the context requires otherwise: (a) Headings are for convenience only and do not affect interpretation. (b) The singular includes the plural and conversely. (c) A reference to a section is to a section of this Bidder’s Statement. (d) A gender includes all genders. (e) Where a word or phrase is defined, its other grammatical forms have a corresponding meaning. (f) A reference to a person includes a body corporate, an unincorporated body or other entity and conversely. (g) A reference to a person includes a reference to the person’s executors, administrators, successors, substitutes (including, but not limited to, persons taking by novation) and assigns. (h) A reference to any legislation or to any provision of any legislation includes any modification or re-enactment of it, any legislative provision substituted for it and all regulations and statutory instruments issued under it. (i) A reference to any instrument or document includes any variation or replacement of it. (j) A term not specifically defined in this Bidder’s Statement has the meaning given to it (if any) in the Corporations Act or the ASX Settlement Operating Rules, as the case may be. (k) A reference to a right or obligation of any two or more persons confers that right, or imposes that obligation, as the case may be, jointly and individually.
(l) A reference to you is to a person to whom the Offer is made under Appendix 1 to this Bidder’s Statement. For personal use only use personal For
40 | BCX Gold Investment Holdings Ltd 12. approval of Bidder’s Statement
The copy of this Bidder’s Statement that is to be lodged with ASIC has been approved by a resolution passed by the sole director of BCX Gold on
1 August 2011. For personal use only use personal For
Bidder’s Statement | 41 Appendix 1 – Formal terms of the Offer
1. offer
BCX Gold offers to acquire some or all of your Gold One Shares, together with all Rights attaching to them, on the following terms and conditions. This Offer relates to Gold One Shares that exist or will exist at the Register Date and extends to any Gold One Shares that are issued between that date and the end of the Offer Period as a result of the exercise of the Convertible Bonds or Options. You may accept this Offer in respect of some or all of your Gold One Shares. By accepting this Offer, you undertake to transfer to BCX Gold not only all of your Accepted Shares but also all Rights attached to your Accepted Shares (see clauses 5.4 and 5.5).
2. consideration
The consideration offered for each Gold One Share is A$0.55 in cash. For those Gold One Shareholders who hold Gold One Shares on the Gold One South African Share Register, to satisfy the Exchange Control Regulations, the consideration will be settled in ZAR. This will involve the Australian cash consideration being converted into ZAR based on the spot A$/ZAR rate on the date on which the consideration is paid and then paid on the same day to Gold One Shareholders on the Gold One South African Share Register who have accepted the Offer.
3. offer Period
This Offer will, unless withdrawn, remain open for acceptance during the period commencing on the date of this Offer, being 8 August 2011, and ending at 7.00pm (Sydney time) / 10.00am (South African time) on: (a) 11 November 2011; or (b) any date to which the period of this Offer is extended in accordance with the Corporations Act, whichever is the later.
4. how to accept this Offer
4.1 acceptance Forms Acceptances must be received in the manner specified below prior to the Closing Date.
4.2 all or some of your holding This Offer is for some or all of your Gold One Shares. If you wish to sell only some of your Gold One Shares, you must specify the number of Gold One Shares you wish to sell in your Acceptance Form. If you do not specify a number of Gold One Shares, or you specify a number greater than your shareholding, on your Acceptance Form, you will be taken to have accepted this Offer for all of your Gold One Shares.
4.3 acceptance procedure for Gold One Shareholders on the Gold One Australian Share Register If you are a Gold One Shareholder on the Gold One Australian Share Register, you should have received a blue Australian Acceptance Form. How you accept this Offer depends on whether your Gold One Shares are held in a CHESS Holding or an Issuer Sponsored Holding (the blue Australian Acceptance Form outlines which type of holding you have): (a) If you hold your Gold One Shares in a CHESS Holding (your HIN starts with an “X”) you must comply with the ASX Settlement Operating Rules. If you hold your Gold One Shares in a CHESS Holding, to accept this Offer you must either: (i) instruct your Controlling Participant (usually your Broker) to initiate acceptance of this Offer on your behalf in accordance with
Rule 14.14 of the ASX Settlement Operating Rules in sufficient time for this Offer to be accepted before the Closing Date; or For personal use only use personal For (ii) complete and sign the blue Australian Acceptance Form and send the completed blue Australian Acceptance Form (together with all other documents required by the instructions on the form) directly to your Controlling Participant (usually your Broker) in sufficient time for this Offer to be accepted before the Closing Date with instructions to initiate acceptance of this Offer on your behalf in accordance with Rule 14.14 of the ASX Settlement Operating Rules before the Closing Date; or (iii) complete and sign the blue Australian Acceptance Form and lodge it by returning it to an address as indicated under clause 4.3(e) so that your acceptance is received before 7.00pm. (Sydney time) on the second last business day of the Offer Period in Sydney. This will authorise BCX Gold to instruct your Controlling Participant (usually your Broker) to initiate acceptance of this Offer on your behalf.
42 | BCX Gold Investment Holdings Ltd (b) If you are a Broker or an ASX Settlement Participant, to accept this Offer you must initiate acceptance in accordance with the requirements of the ASX Settlement Operating Rules before the Closing Date. (c) If you hold your Gold One Shares in an Issuer Sponsored Holding (your SRN starts with an “I”) If your Gold One Shares are in an Issuer Sponsored Holding, to accept this Offer you must complete and sign the blue Australian Acceptance Form in accordance with the instructions on it and lodge it by returning it (together with all other documents required by the instructions on the blue Australian Acceptance Form) to an address as indicated under clause 4.3(e) so that your acceptance is received before the Closing Date. (d) If your Gold One Shares are held in a number of forms If your Gold One Shares are in different holdings, your acceptance of this Offer will require action under clauses 4.3(a) and 4.3(c) in relation to the separate portions of your Gold One Shares. (e) Postal and delivery addresses The postal and delivery addresses for completed blue Australian Acceptance Forms are as follows. The postal address is: Boardroom Pty Limited GPO Box 3993 Sydney NSW 2001 Alternatively you may deliver the blue Australian Acceptance Form and any associated documents in person to: Boardroom Pty Limited Level 7 207 Kent Street Sydney NSW 2000 If you are a Gold One Shareholder within Australia a reply paid envelope is enclosed for your convenience. The transmission of the Australian Acceptance Form and other documents is at your own risk. (f) Australian Acceptance Form The Australian Acceptance Form which accompanies this Offer forms part of it. Subject to clause 4.6, the requirements on the Australian Acceptance Form must be observed in accepting this Offer in respect of your Gold One Shares.
4.4 acceptance procedure for holders of Gold One Shares on the Gold One South African Share Register The following paragraphs set out the procedure for acceptance of the Offer if you hold Gold One Shares which are registered on the Gold One South African Share Register: (a) Gold One Shares held in certificated form (that is, not in Strate) (i) Completion of yellow SA Acceptance Form You will find enclosed with this Bidder’s Statement a yellow SA Acceptance Form for use in relation to the Offer. You should note that, if you hold Gold One Shares in certificated form, but under different designations, you should complete a separate yellow SA Acceptance Form in respect of each designation. Further SA Acceptance Forms can be obtained from Computershare at the address indicated in clause 4.4(c), or by telephoning Computershare on (011) 370 5000 (if calling from inside South Africa) or +27 11 370 5000 (if calling from elsewhere). You should return the completed yellow SA Acceptance Form (together with your share certificate(s) and any other document(s) of title) by post or by hand (during normal business hours) to Computershare at the address indicated in clause 4.4(c) as soon as possible, and in any event, so as to be received by Computershare not later than the Closing Date, being 10.00am (South African time) on 11 November 2011 (unless extended or withdrawn). (ii) To accept the Offer in respect of all your Gold One Shares To accept the Offer in respect of all of your Gold One Shares, you must complete the yellow SA Acceptance Form and insert the number of all your Gold One Shares in the box provided. In all cases, you must complete and sign the yellow SA Acceptance Form in accordance with the instructions printed on the yellow SA Acceptance Form. For personal use only use personal For (iii) To accept the Offer in respect of less than all your Gold One Shares To accept the Offer in respect of less than all your Gold One Shares, you must insert on the yellow SA Acceptance Form such lesser number of Gold One Shares in respect of which you wish to accept the Offer in accordance with the instructions printed thereon. If you do not insert a number in the appropriate space in the yellow SA Acceptance Form, or if you insert a number which is greater than the number of Gold One Shares that you hold and have signed the yellow SA Acceptance Form, your acceptance will be deemed to be in respect of all Gold One Shares held by you. In all cases, you must complete and sign the yellow SA Acceptance Form in accordance with the instructions printed on the yellow SA Acceptance Form.
Bidder’s Statement | 43 (iv) General requirements If you are an individual, you are requested to sign the yellow SA Acceptance Form in accordance with the instructions printed on it. Any Gold One Shareholder which is a company should execute the yellow SA Acceptance Form in accordance with the instructions printed on it. Gold One Shareholders who are registered on the Gold One South African Share Register are referred to clause 5.8 which summarises the Exchange Control Regulations in accordance with which the settlement of the consideration will be effected. Furthermore, such Gold One Shareholders who are emigrants from the Common Monetary Area or non-residents of the Common Monetary Area should observe the instructions printed on the yellow SA Acceptance Form. (v) Share certificates not readily available or lost Your completed yellow SA Acceptance Form should be accompanied by the relevant share certificate(s) and/or document(s) of title. If for any reason, your share certificate(s) and/or other document(s) of title is/are not readily available, you should nevertheless complete, sign and return your completed yellow SA Acceptance Form as stated above. You should send with the yellow SA Acceptance Form any share certificate(s) and/or other document(s) of title which you may have available, accompanied by a letter stating that the remaining documents will follow or that you have lost one or more of your share certificates and/or other document of title and such certificate(s) and/or document(s) of title should be forwarded as soon as possible thereafter. If you have lost your share certificate(s) and/or other document(s) of title, you should telephone Computershare on (011) 370 5000 (if calling from inside South Africa) or +27 11 370 5000 (if calling from elsewhere) as soon as possible to request a letter of indemnity for lost share certificate(s) and/or other document(s) of title which, when completed in accordance with the instructions given, should be returned to Computershare at the address indicated under clause 4.4(c). Your acceptance will not be treated as valid until a letter of indemnity has been received. (b) Gold One Shares held in uncertificated form (that is, in Strate) If you hold your Gold One Shares, or any of them, in uncertificated form (that is, in Strate), your CSDP or stockbroker should contact you in terms of the custody or mandate agreement concluded between you and the CSDP or stockbroker, as the case may be, to ascertain whether or not you wish to accept the Offer. If you wish to accept the Offer but have not been contacted by your CSDP or stockbroker, it would be advisable to contact and furnish your CSDP or stockbroker with instructions in relation to the acceptance of the Offer. These instructions must be provided in the manner and by the cut-off date and time advised by your CSDP or stockbroker in terms of the custody or mandate agreement and must be communicated to Computershare, details of whom are set out above, by not later than the Closing Date, being 10.00am (South African time) on 11 November 2011 (unless the Offer is extended or withdrawn). Neither BCX Gold, Gold One nor Computershare take any responsibility nor will they be held liable for any failure on the part of any CSDP or stockbroker to notify you of the Offer and/or to obtain instructions from you and submit acceptances timeously to Computershare. (c) Postal and delivery addresses The postal and delivery addresses for completed yellow SA Acceptance Forms are as follows. The postal address is: Computershare Investor Services (Proprietary) Limited PO Box 61763 Marshalltown 2107 The transmission of the yellow SA Acceptance Form and other documents is at your own risk. You may deliver the yellow SA Acceptance Form and any associated documents in person in South Africa to: Computershare Investor Services (Proprietary) Limited 70 Marshall Street Johannesburg 2001 (d) SA Acceptance Form The yellow SA Acceptance Form which accompanies this Bidder’s Statement forms part of it. Subject to clause 4.6, the requirements of the yellow SA Acceptance Form must be observed in accepting this Offer in respect of your Gold One Shares.
4.5 power of attorney, deceased estate For personal use only use personal For When accepting this Offer, you should also forward for inspection: (a) if the Acceptance Form is executed by an attorney, a certified copy of the power of attorney; and (b) if the Acceptance Form is executed by the executor of a will or the administrator of the estate of a deceased Gold One Shareholder, a certified copy of the relevant grant of probate or letters of administration.
44 | BCX Gold Investment Holdings Ltd 4.6 when acceptance is complete Acceptance of this Offer will not be complete until the completed Acceptance Form has been received at one of the addresses set out in clause 4.3(e) or 4.4(c) (as applicable) and the requirements of this clause 4 have otherwise been met, provided that: (a) BCX Gold may in its sole discretion and without notice to you waive any or all of those requirements at any time (including but not limited to requirements in relation to the manner or method of acceptance, or the deadline for receipt of acceptances); and (b) where such requirements have been complied with in respect of some but not all of your Gold One Shares, BCX Gold may, in its sole discretion, deem your acceptance of this Offer complete in respect of those Gold One Shares for which the requirements have been complied with but not in respect of the remainder (unless BCX Gold waives those requirements in accordance with clause 4.6(a)). Where BCX Gold elects to waive any requirement of clause 4, your acceptance of this Offer will be complete regardless of any failure by you to comply with the waived requirement.
5. payment for your Gold One Shares
5.1 how payment for your Gold One Shares will be made The consideration payable by BCX Gold to you in respect of your Gold One Shares will be paid in Australian currency to Gold One Shareholders on the Gold One Australian Share Register and will be paid in ZAR to Gold One Shareholders on the Gold One South African Share Register. In relation to the payment to Gold One Shareholders on the Gold One South African Share Register, the payment will involve the Australian cash consideration being converted into ZAR based on the spot A$/ZAR rate on the date on which the consideration is paid and then paid on the same day to Gold One Shareholders on the Gold One South African Share Register who have accepted the Offer.
5.2 when consideration is paid Provided you have properly accepted this Offer in accordance with clause 4, BCX Gold will provide the consideration to which you are entitled on acceptance of this Offer on the date that is 5 Business Days after the end of the Offer Period. However, if doing this would result in payment more than 1 month after the date on which the Offer is declared unconditional, then, provided you have accepted the Offer before it becomes unconditional, BCX Gold will provide the consideration to which you are entitled on acceptance of this Offer by no later than the date that is 1 month after the date on which the Offer is declared unconditional. If you accept the Offer after it becomes unconditional, BCX Gold will provide the consideration to which you are entitled on acceptance of this Offer within the earlier of one month after acceptance of this Offer and 5 Business Days after the end of the Offer Period.
5.3 where additional documents are required Where the Acceptance Form or any subsequent request from BCX Gold requires additional documents to be given with your acceptance (such as a certified copy of any of a power of attorney, grant of probate or letters of administration, or any other document reasonably requested by BCX Gold to give better effect to your acceptance): (a) if the documents are given with your acceptance, BCX Gold will provide the consideration in accordance with clause 5.2; or (b) if the documents are given after acceptance and before the end of the Offer Period and this Offer is subject to a defeating condition at the time that BCX Gold is given the documents, BCX Gold will provide the consideration to which you are entitled on acceptance of this Offer on the date that is 5 Business Days after the end of the Offer Period, unless to do so would result in payment more than 1 month after the date on which the Offer is declared unconditional, in which case, BCX Gold will provide the consideration to which you are entitled on acceptance of this Offer by no later than the date that is 1 month after the date on which the Offer is declared unconditional; or (c) if the documents are given after acceptance and before the end of the Offer Period and this Offer is unconditional at the time that BCX Gold is given the documents, BCX Gold will provide the consideration to which you are entitled on acceptance of this Offer on the earlier of: (i) the date that is 5 Business Days after the end of the Offer Period; and (ii) the date which is 1 month after the documents are given; or (d) if the documents are given after the end of the Offer Period, BCX Gold will provide the consideration within 5 Business Days after the date the documents are given. If you do not provide BCX Gold with the required additional documents within one month after the end of the Offer Period, BCX Gold may, in its
sole discretion, rescind the contract resulting from your acceptance of this Offer. For personal use only use personal For
Bidder’s Statement | 45 5.4 where BCX Gold is entitled to any Rights If BCX Gold becomes entitled to any Rights as a result of your acceptance of this Offer, it may require you to give BCX Gold all documents necessary to vest those Rights in BCX Gold or otherwise to give BCX Gold the benefit or value of those Rights. If you do not give those documents to BCX Gold, or if you have received the benefit of those Rights, then BCX Gold may deduct from the consideration otherwise due to you the amount (or value, as reasonably assessed by BCX Gold) of those Rights in accordance with clause 5.5.
5.5 rights generally If: (a) you have (or any previous holder of your Gold One Shares has) received the benefit of any Rights (whether in respect of non-cash benefits or otherwise); or (b) you are (or any previous holder of your Gold One Shares is) entitled to receive the benefit of any Rights under the terms that provide for or otherwise apply to those Rights (for example, if the Right is to receive a dividend, if you are (or any previous holder of your Gold One Shares is) the registered holder of the share at the specified time for determining those entitled to the dividend); or (c) your Gold One Shares were issued (or otherwise came into existence) on or after the specified time for determining entitlements in respect of any Rights to Gold One Shareholders, then: (d) in the case of Rights to non-cash benefits, BCX Gold may deduct the value (as reasonably assessed by BCX Gold) of such Rights from any consideration otherwise payable to you; or (e) in the case of Rights to cash benefits, BCX Gold may deduct the amount of such Rights from any consideration otherwise payable to you. If BCX Gold does not, or cannot, make such a deduction, you must pay such value or amount to BCX Gold.
5.6 manner of payment (a) Gold One Shareholders on the Gold One Australian Share Register Where an acceptance relates to Gold One Shares held on the Gold One Australian Share Register, payment of the cash amount to which you are entitled will be mailed by cheque in Australian currency. Cheques will be sent to the address on the Australian Acceptance Form or such other address as you may notify in writing to BCX Gold, by pre-paid ordinary mail or, if you have an overseas address, by pre-paid airmail. (b) Gold One Shareholders on the Gold One South African Share Register (i) Gold One Shares held in uncertificated form (that is, in Strate) Where an acceptance relates to Gold One Shares held in uncertificated form, settlement of the consideration to Gold One Shareholders whose Gold One Shares are held by their CSDP or stockbroker as nominees, will, subject to clause 5.8, take place in accordance with your custody or mandate agreement. Payment will be by way of appropriate entries being made in the sub-register of Gold One administered or maintained by the CSDP or stockbroker, such that the Gold One Shares will be debited from the accounts of the relevant Gold One Shareholders and the consideration will be credited to such accounts in accordance with the terms of your custody or mandate agreement. (ii) Gold One Shares held in certificated form (that is, not in Strate) Subject to clause 5.8, where an acceptance relates to Gold One Shares held in certificated form, the consideration will be posted by cheque by pre-paid ordinary mail to your address recorded in the Gold One South African Share Register, unless an alternative address is furnished in the SA Acceptance Form and provided that Computershare is in possession of the valid share certificate(s) with respect to the relevant Gold One Shares.
5.7 clearances for offshore resident Gold One Shareholders on the Gold One Australian Share Register If, at the time of acceptance of this Offer by a Gold One Shareholder on the Gold One Australian Share Register, any consent, authority or clearance is required for you to receive any consideration under this Offer including, but not limited to consent, authority or clearance of: (a) the Minister for Foreign Affairs (whether under the Charter of the United Nations Act 1945 (Cwlth), the Charter of the United Nations (Terrorism and Dealings with Assets) Regulations 2002 or any other regulations made thereunder, or otherwise);
For personal use only use personal For (b) the Reserve Bank of Australia (whether under the Banking (Foreign Exchange) Regulations 1959 (Cwlth) or otherwise); or (c) the Australian Taxation Office, then acceptance of this Offer will not create or transfer to you any right (contractual or contingent) to receive (and you will not be entitled to receive) any consideration under this Offer unless and until all such consents, authorities or clearances have been obtained by BCX Gold.
46 | BCX Gold Investment Holdings Ltd 5.8 south African Exchange Control Regulations The settlement of the consideration in respect of Gold One Shares which are registered on the Gold One South African Share Register will be effected in accordance with the Exchange Control Regulations. Discharge of the consideration will be made within the time period set forth in this Bidder’s Statement, subject to the Exchange Control Regulations. The following is a summary of the Exchange Control Regulations which apply to Gold One Shareholders. If in doubt, Gold One Shareholders should consult their professional advisers without delay. (a) Residents of the Common Monetary Area The consideration due to Gold One Shareholders who are residents of the Common Monetary Area will be dealt with as follows: (i) in the case of Gold One Shareholders whose Gold One Shares are held in their own names and whose registered addresses in the register are within the Common Monetary Area and whose share certificates are not restrictively endorsed in terms of the Exchange Control Regulations, the consideration will be paid to such Gold One Shareholders; or (ii) in the case of Gold One Shareholders whose Gold One Shares are held by their CSDP or stockbroker as nominees and whose registered addresses in the register are within the Common Monetary Area and have not been restrictively designated in terms of the Exchange Control Regulations, the consideration will be credited directly to the accounts nominated for the relevant Gold One Shareholder by their duly appointed CSDP or stockbroker in terms of the provisions of the custody or mandate agreement with their CSDP or stockbroker. (b) Emigrants from the Common Monetary Area The consideration due to Gold One Shareholders who are emigrants from the Common Monetary Area will be dealt with as follows: (i) in the case of Gold One Shareholders whose Gold One Shares are held in their own names and whose share certificates have been restrictively endorsed under the Exchange Control Regulations, the consideration will be forwarded to the authorised dealer(s) in foreign exchange in South Africa controlling such Gold One Shareholders’ blocked assets in terms of the Exchange Control Regulations. The SA Acceptance Form makes provision for details of the authorised dealer(s) concerned to be given; or (ii) in the case of Gold One Shareholders whose Gold One Shares are held by their CSDP or stockbroker as nominees, the consideration will be credited to the account of the Gold One Shareholders’ CSDP or stockbroker which shall arrange for the same to be credited directly to the Gold One Shareholders’ blocked ZAR account held by the Gold One Shareholders’ dealers in foreign exchange in South Africa. (c) All other non-residents of the Common Monetary Area The consideration due to Gold One Shareholders who hold Gold One Shares that are registered on the Gold One South African Share Register and who are non-resident Gold One Shareholders of the Common Monetary Area, have not resided in South Africa and whose registered addresses are outside the Common Monetary Area will be dealt with as follows: (i) in the case of Gold One Shareholders whose Gold One Shares are held in their own names, the consideration will be forwarded to the authorised dealer(s) in foreign exchange in South Africa which hold(s) their non-resident account(s) in terms of the Exchange Control Regulations. The SA Acceptance Form makes provision for details of the authorised dealer(s) concerned to be given; or (ii) in the case of Gold One Shareholders whose Gold One Shares are held by their CSDP or stockbroker as nominees, the consideration will be credited to the account of the Gold One Shareholders’ CSDP(s) or stockbroker(s) which shall arrange for the same to be forwarded to the authorised dealer(s) in foreign exchange in South Africa which hold(s) the Gold One Shareholders’ non-resident account(s) in terms of the Exchange Control Regulations. (d) Information not provided If the information regarding authorised dealers or registered addresses is not given, the consideration will be held in trust by Computershare for the Gold One Shareholder concerned, pending receipt of the necessary information or instructions. The SA Acceptance Form makes provision for the Gold One Shareholder concerned to furnish written instructions as to how the consideration should be dealt with. It will then be incumbent on such Gold One Shareholder to instruct Computershare as to how such consideration is to be dealt with. No interest
will accrue or be paid to any Gold One Shareholder in respect of any consideration so held in trust. For personal use only use personal For
Bidder’s Statement | 47 6. conditions of this Offer
6.1 conditions This Offer and the contract that results from acceptance of this Offer are subject to fulfilment of the Conditions set out in Appendix 2.
6.2 nature of Conditions Each of the Conditions set out in each paragraph and subparagraph of Appendix 2: (a) constitutes and will be construed as a separate, several and distinct condition; (b) is a condition subsequent with the exception of the Condition specified in paragraph (c) of Appendix 2, which is a condition precedent; and (c) will be for the benefit of BCX Gold alone and may be relied upon only by BCX Gold.
6.3 effect of breach or non-fulfilment The breach or non-fulfilment of any of the Conditions does not, until the end of the Offer Period, prevent a contract arising to acquire your Gold One Shares resulting from your acceptance of this Offer but, if by the date specified in clause 6.6 below, in respect of any Condition: (a) BCX Gold has not declared this Offer (and it has not become) free from that Condition; and (b) that Condition has not been fulfilled, all contracts resulting from the acceptance of the Offer and all acceptances that have not resulted in binding contracts are void. In such a case, BCX Gold will notify ASX Settlement of the lapse of the Offer in accordance with Rule 14.19 of the ASX Settlement Operating Rules.
6.4 all reasonable endeavours in relation to Conditions (a) BCX Gold will: (i) use all reasonable endeavours (to the extent within its control) to ensure that the Conditions are satisfied; and (ii) not do or omit to do anything for the purpose of causing a breach of any such Condition; and (b) Gold One has agreed in the TIA to use reasonable endeavours not to do (or omit to do) anything which will, or is likely to, result in any of the Conditions being breached, and to use best endeavours to ensure that the Conditions in paragraphs (f) and (i) of Appendix 2 are fulfilled.
6.5 BCX Gold may decide Offer is free from all or any of the Conditions BCX Gold may, at any time at its sole discretion, but in compliance with the Corporations Act, declare the Offer free from all or any of the Conditions by notice in writing to Gold One not later than seven days before the end of the Offer Period.
6.6 date for giving notice on status of Conditions The date for giving a notice on the status of the Conditions as required by section 630(1) of the Corporations Act is 28 October 2011, subject to
variation in accordance with section 630(2) of the Corporations Act in the event that the Offer Period is extended. For personal use only use personal For
48 | BCX Gold Investment Holdings Ltd 7. effect of Acceptance
7.1 revocation of acceptance Once you have accepted this Offer, you will be unable to revoke your acceptance and the contract resulting from your acceptance will be binding on you. In addition, you will be unable to withdraw your acceptance of this Offer or otherwise dispose of your Accepted Shares, except as follows: (a) if, by the end of the Offer Period, the Conditions have not all been fulfilled or waived, then this Offer will automatically terminate and BCX Gold will not acquire your Accepted Shares under the Offer; or (b) if the Offer Period is varied in a way that postpones for more than one month the time when BCX Gold has to meet its obligations under the Offer and, at that time, this Offer is subject to one or more of the Conditions, then you may be able to withdraw your acceptance in accordance with section 650E of the Corporations Act.
7.2 your agreement By signing and returning the Acceptance Form, or otherwise accepting this Offer you will be deemed to have: (a) irrevocably authorised BCX Gold to alter the Acceptance Form on your behalf by: (i) inserting correct details of your Gold One Shares (including details of a parcel of Gold One Shares required by clause 10.4(b)); (ii) filling in any blanks remaining on the Acceptance Form; and (iii) rectifying any errors in, and omissions from, the Acceptance Form, as may be necessary to make the Acceptance Form a valid acceptance of this Offer, to ensure compliance with the Corporations Act (including section 618(2) of the Corporations Act) or to enable registration of the transfer of your Accepted Shares to BCX Gold, and agreed to provide any document reasonably requested by BCX Gold to make the Acceptance Form a valid acceptance of this Offer or to otherwise give better effect to your acceptance; and (b) if any of your Accepted Shares are in a CHESS Holding, irrevocably authorised BCX Gold to: (i) instruct your Controlling Participant to initiate acceptance of this Offer in respect of your Accepted Shares in accordance with the ASX Settlement Operating Rules; and (ii) give any other instructions in relation to your Accepted Shares to your Controlling Participant on your behalf under the sponsorship agreement between you and the Controlling Participant; and (c) if any of your Accepted Shares are held on the Gold One South African Share Register in uncertificated form (that is, in Strate), irrevocably authorised BCX Gold to: (i) instruct your CSDP or stockbroker to initiate acceptance of this Offer in respect of your Accepted Shares in accordance with Strate; and (ii) give any other instructions in relation to your Accepted Shares to your CSDP or stockbroker on your behalf under the custody or mandate agreement between you and your CSDP or stockbroker; and (d) agreed to indemnify BCX Gold in respect of any claim or action against it or any loss, damage or liability whatsoever incurred by it as a result of you not producing your HIN or SRN or in consequence of the transfer of your Accepted Shares to BCX Gold being registered by Gold One without production of your HIN or SRN; and (e) agreed to the terms and conditions of this Offer and, subject to the Conditions being fulfilled or waived, agreed to transfer (or consented to the transfer of in accordance with the ASX Settlement Operating Rules and Strate) your Accepted Shares to BCX Gold; and (f) represented and warranted to BCX Gold, as a fundamental condition of the contract resulting from your acceptance of this Offer, that at the time of acceptance and at the time of transfer of your Accepted Shares to BCX Gold: (i) you have paid to Gold One all amounts which are due for payment in respect of your Accepted Shares; and (ii) all of your Accepted Shares are fully paid and free from all Encumbrances and restrictions on transfer of any nature; and (iii) you have full power and capacity to sell and transfer your Accepted Shares; and (g) on this Offer or any takeover contract becoming unconditional:
(i) irrevocably appointed BCX Gold and each of its directors from time to time individually as your agent and attorney on your behalf For personal use only use personal For to: (A) attend and vote in respect of your Accepted Shares at all general meetings of Gold One; (C) receive from Gold One or any other party, and retain, any share certificates which were held by Gold One, or any other party, whether pursuant to the terms of any employee incentive scheme (including, without limitation, any employee share scheme) or otherwise; and
Bidder’s Statement | 49 (D) sign all documents (including an instrument appointing one of BCX Gold’s directors as a proxy in respect of any or all of your Accepted Shares and any application to Gold One for a replacement certificate in respect of any share certificate which has been lost or destroyed) and resolutions relating to your Accepted Shares, and generally to exercise all powers and rights which you may have as a Gold One Shareholder in respect of your Accepted Shares and perform such actions as may be appropriate in order to vest good title in your Accepted Shares in BCX Gold, and to have agreed that, in exercising such powers, any such director is entitled to act in BCX Gold’s interests as the beneficial owner and intended registered holder of your Accepted Shares; and (ii) agreed not to vote in person at any general meeting of Gold One or to exercise (or purport to exercise) in person, by proxy or otherwise, any of the powers conferred on the directors of BCX Gold by clause 7.2(g)(i); and (iii) irrevocably authorised and directed BCX Gold to direct Gold One to pay to BCX Gold, or to account to BCX Gold for, all Rights in respect of your Accepted Shares, subject to BCX Gold accounting to you for any such Rights received by BCX Gold if this Offer is withdrawn or any contract resulting from your acceptance to this Offer is rescinded or rendered void; and (iv) irrevocably authorised BCX Gold to notify Gold One on your behalf that your place of address for the purposes of serving notices upon you in respect of your Accepted Shares is the address specified by BCX Gold in the notification; and (v) where, at that time, you have a right to be registered as a holder of your Accepted Shares as the result of an on-market purchase (but are not a Gold One Shareholder): (A) agreed to use best endeavours to procure the delivery of your Accepted Shares to BCX Gold in accordance with your acceptance (including giving BCX Gold all documents necessary to vest those Accepted Shares in BCX Gold or otherwise to give BCX Gold the benefit or value of those Accepted Shares); (B) agreed not do or omit to do anything which may frustrate your acceptance of this Offer, or otherwise obstruct registration of the transfer of your Accepted Shares to BCX Gold; (C) irrevocably assigned to BCX Gold all contractual rights and recourse against the vendor in respect of your on-market purchase which contractual rights and recourse may arise by reason of that person’s failure to complete that trade; (D) agreed to assign to BCX Gold (without any further action being required) all rights in respect of your on-market purchase immediately on any failure by you to complete that trade, including irrevocably assigning to BCX Gold the right to (at BCX Gold’s ultimate discretion) complete that trade on your behalf, and agreed that BCX Gold may deduct from the consideration otherwise payable to you (pursuant to a valid acceptance of this Offer and the delivery of your Accepted Shares) any amount paid by BCX Gold in order to settle that on-market purchase on your behalf. If BCX Gold does not, or cannot, make such a deduction, you must pay such amount to BCX Gold; and (E) agreed that if you are unable to assign to BCX Gold any of the rights and recourse specified under clauses 7.2(g)(v)(C) and (D), you will assign such rights and recourse as soon as you are legally able to; and (h) if at the time of acceptance of this Offer your Accepted Shares are in a CHESS Holding, authorised, with effect from the date that this Offer or any contract resulting from acceptance of this Offer is declared free from all its conditions or those conditions are satisfied, BCX Gold to cause a message to be transmitted to ASX Settlement in accordance with Rule 14.17.1 of the ASX Settlement Operating Rules so as to transfer your Accepted Shares to the BCX Gold’s Takeover Transferee Holding. BCX Gold will be so authorised even though at the time of such transfer it has not provided the consideration due to you under this Offer. By accepting this Offer you will be deemed to have agreed to the matters set out in clauses 7.2(a) to (h), including where this Offer has been caused to be accepted in accordance with the ASX Settlement Operating Rules and Strate. Except in relation to Gold One Shares in a CHESS Holding or held in Strate, BCX Gold may at any time deem the receipt of a signed Acceptance Form to be a valid acceptance of this Offer even though you omit to include your share certificate(s) (if any) or there is non-compliance with any one or more of the other requirements for acceptance but, if BCX Gold does so, BCX Gold is not obliged to make the consideration available to you
until all of the requirements for acceptance have been met. For personal use only use personal For
50 | BCX Gold Investment Holdings Ltd 8. withdrawal
BCX Gold may withdraw unaccepted Offers at any time with the written consent of ASIC and subject to the conditions (if any) specified in such consent.
9. variation
BCX Gold may vary this Offer in accordance with the Corporations Act.
10. acceptances by transferees and nominees
10.1 who may accept this Offer During the Offer Period: (a) any person who is able to give good title to a parcel of your Gold One Shares may accept this Offer (if they have not already accepted an offer in the form of this Offer) as if an offer on terms identical with this Offer has been made to them; and (b) any person who holds one or more parcels of Gold One Shares as trustee, nominee, or otherwise on account of another person, may accept as if a separate and distinct offer had been made in relation to: (i) each of those parcels; and (ii) any parcel they hold in their own right.
10.2 holding Gold One Shares (a) A person is taken to hold Gold One Shares if the person is, or has a right to be registered as, the holder of those Gold One Shares. (b) A person who has a right to be registered as a holder of Gold One Shares may accept this Offer by completing and signing the Acceptance Form in accordance with the instructions on it and lodging it by returning it (together with all other documents required by the instructions on the Acceptance Form) to an address indicated under clause 4.3(e) and 4.4(c) so that the acceptance is received before the end of the Offer Period.
10.3 holding Gold One Shares on trust or as a nominee A person is taken to hold Gold One Shares on trust for, as nominee for, or on account of, another person if they: (a) are entitled to be registered as the holder of particular Gold One Shares; and (b) hold their interest in the Gold One Shares on trust for, as nominee for, or on account of, that other person.
10.4 effective acceptance An acceptance of an offer under clause 10.1(b) is ineffective unless: (a) the person who holds on account of another person, gives BCX Gold a notice stating that the Gold One Shares consist of a separate parcel; and (b) the acceptance specifies the number of Gold One Shares in that parcel. References in this Offer to your Gold One Shares will be treated to relate to that separate parcel.
10.5 notice of acceptance A notice under clause 10.4(a) of these terms must be made: (a) if it relates to Gold One Shares entered on an ASX Settlement subregister – in an electronic form approved by the ASX Settlement Operating Rules; or (b) otherwise – in writing. A person may, at the one time, accept for two or more parcels under this clause as if there had been a single offer for a separate parcel consisting
For personal use only use personal For of those parcels.
Bidder’s Statement | 51 11. other matters
11.1 notices and other communications Subject to the Corporations Act, a notice or other communication given by BCX Gold to you in connection with this Offer shall be deemed to be duly given if it is in writing and: (a) is delivered at your address as recorded on the register of members of Gold One or the address shown in the Acceptance Form; or (b) is sent by pre-paid ordinary mail in Australia or (if BCX Gold elects) South Africa, or in the case of an address outside Australia (including, if BCX Gold elects, South Africa) by pre-paid airmail, to you at either of those addresses.
11.2 return of documents (a) Gold One Shareholders on the Gold One Australian Share Register In respect of Gold One Shareholders on the Gold One Australian Share Register, if: (i) this Offer is withdrawn after your Australian Acceptance Form has been sent to BCX Gold, but before it has been received; or (ii) for any other reason BCX Gold does not acquire the Gold One Shares to which your Australian Acceptance Form relates, you may request BCX Gold by notice in writing to despatch (at your risk) your Australian Acceptance Form together with all other documents forwarded by you, to such address as you nominate. Where such address is inside Australia, the documents will be despatched by pre-paid ordinary mail. Where such address is outside Australia, the documents will be despatched by pre-paid airmail. (b) Gold One Shareholders on the Gold One South African Share Register If this Offer is withdrawn after your SA Acceptance Form has been sent to BCX Gold, but before it has been received or for any other reason BCX Gold does not acquire the Gold One Shares to which your SA Acceptance Form relates: (i) in respect of Gold One Shares registered on the Gold One South African Share Register and held in certificated form, the SA Acceptance Form, relevant share certificate(s) and/or other document(s) of title will be returned to you by ordinary mail at such address as you nominate; and (ii) in respect of Gold One Shares registered on the Gold One South African Share Register and held in uncertificated form (that is, in Strate), your acceptance will, immediately after the lapsing or withdrawal of the Offer, lapse automatically and you need take no further action.
11.3 costs and expenses All costs and expenses of the preparation, despatch and circulation of the Bidder’s Statement and this Offer and all stamp duty or securities transfer tax payable in respect of a transfer of Accepted Shares will be paid by BCX Gold.
11.4 foreign laws This Offer is not registered in any jurisdiction outside Australia (unless an applicable foreign law treats it as registered as a result of the Bidder’s Statement being lodged with ASIC). It is your sole responsibility to satisfy yourself that you are permitted by any foreign law applicable to you to accept this Offer.
11.5 Governing law
This Offer and any contract resulting from acceptance of it is governed by the law in force in Western Australia. For personal use only use personal For
52 | BCX Gold Investment Holdings Ltd Appendix 2 – Conditions of the Offer
The Offer and any contract resulting from acceptance of the Offer is subject to fulfilment of the following conditions: (a) (Gold One Shareholders’ Resolution) that the Gold One Shareholders’ Resolution is approved by the requisite majority of Gold One Shareholders during the Condition Period. (b) (60% Minimum Interest Condition) during the Condition Period, BCX Gold has an aggregate interest in at least 60% (by number) of the Gold One Shares on issue at that time. For the purpose of determining under this Condition (b) the aggregate interest held by BCX Gold as a percentage of the Gold One Shares on issue at any relevant time, the following are to be taken into account: (i) in calculating the aggregate interest held by BCX Gold, the aggregate of the following: (A) the relevant interests obtained by BCX Gold as a result of acceptances under the Offer; (B) the number of Gold One Shares to be issued under the Initial Subscription and the maximum possible number of Gold One Shares to be issued under the Additional Subscription (being 188,679,245 Gold One Shares); and (C) any other Gold One Shares which either BCX Gold, Baiyin or any related body corporate of either of them has purchased or agreed to purchase on or before the relevant time; and (D) assuming: (aa) all Options held by any of BCX Gold, Baiyin or any related body corporate of either of them at the relevant time (if any) were exercised; (ab) all Convertible Bonds held by any of BCX Gold, Baiyin or any related body corporate of either of them at the relevant time (if any) were converted to Gold One Shares (at the conversion rate that would be applicable at the day after the Subscription Completion Date and as calculated in accordance with paragraph (b)(ii) below) subject, in any event, to a maximum of 361,606 Gold One Shares per Convertible Bond; and (ii) in calculating the total Gold One Shares on issue, assuming: (A) the number of Gold One Shares to be issued under the Initial Subscription and the maximum possible number of Gold One Shares to be issued under the Additional Subscription (being 188,679,245 Gold One Shares) are issued; (B) all Options on issue as at the relevant time were exercised; (C) all Convertible Bonds on issue as at the relevant time were converted to Gold One Shares (at the conversion rate that would be applicable at the day after the Subscription Completion Date) subject, for the purpose of this calculation, to the conversion rate as at the Announcement Date being adjusted as a result of only the following events under the terms of the Convertible Bonds (“Bond Terms”): (aa) the issue of the Gold One Shares under the Initial Subscription and the maximum possible number of Gold One Shares (being 188,679,245 Gold One Shares) under the Additional Subscription to BCX Gold (in accordance with condition 6(b)(vi) of the Bond Terms); and (ab) a change of control (in accordance with condition 6(b)(x) of the Bond Terms), and where, in any event, such calculation is limited to a maximum of 361,606 Gold One Shares per Convertible Bond; and (D) all Gold One Shares which, prior to the relevant time, have been agreed to be issued in connection with any Gold One Project, are issued. (c) (foreign investment approval) BCX receives written notice issued by or on behalf of the Australian Treasurer during the Condition Period stating that there are no objections under the Australian Government’s foreign investment policy to the acquisition by BCX of up to a 100% interest
in Gold One, such notice being unconditional. For personal use only use personal For
Bidder’s Statement | 53 (d) (no Prescribed Events) none of the following events happens during the Condition Period: (i) Gold One converts all or any of its shares into a larger or smaller number of shares; (ii) Gold One or a subsidiary of Gold One resolves to reduce its share capital in any way, except in the case of a distribution in specie relating to the Goliath Transaction (“Goliath Distribution in Specie”) if Gold One elects to implement that distribution by way of a reduction in share capital; (iii) Gold One or a subsidiary of Gold One: (A) enters into a buy-back agreement; or (B) resolves to approve the terms of a buy-back agreement under section 257C(1) or 257D(1) of the Corporations Act; (iv) Gold One or a subsidiary of Gold One issues shares other than Gold One Shares issued: (A) under the terms of the TIA; (B) under the terms of acquisition of any Gold One Projects; or (C) as a result of exercise or conversion of Options or Convertible Bonds, or grants an option over its shares, or agrees to make such an issue or grant such an option; (v) Gold One or a subsidiary of Gold One issues, or agrees to issue, convertible notes; (vi) Gold One or a subsidiary of Gold One disposes, or agrees to dispose, of the whole, or a substantial part, of its business or property, except in the case of the Goliath Transaction; (vii) Gold One or a subsidiary of Gold One charges, or agrees to charge, the whole, or a substantial part, of its business or property; (viii) Gold One or a subsidiary of Gold One resolves to be wound up; (ix) a liquidator or provisional liquidator of Gold One or of a subsidiary of Gold One is appointed; (x) a court makes an order for the winding up of Gold One or of a subsidiary of Gold One; (xi) an administrator of Gold One, or of a subsidiary of Gold One, is appointed under section 436A, 436B or 436C of the Corporations Act; (xii) Gold One or a subsidiary of Gold One executes a deed of company arrangement; (xiii) a receiver, or a receiver and manager, is appointed in relation to the whole, or a substantial part, of the property of Gold One or of a subsidiary of Gold One; (xiv) Gold One or a subsidiary of Gold One adopts a new constitution or modifies or repeals its constitution or a provision of it, except the amendments to Gold One’s constitution adopted at Gold One’s Annual General Meeting held on 19 May 2011; (xv) Gold One or a subsidiary of Gold One enters into a Material Contract, other than one contemplated by, or deemed necessary or desirable (by Gold One, acting reasonably) in connection with, any Gold One Project; (xvi) Gold One ceases to be admitted to the official list of ASX or JSE; or (xvii) a provisional or final judicial manager under Chapter XV of the South African Companies Act, 1973 or a business rescue practitioner under Chapter 6 of the South African Companies Act, 2008 is appointed for a South African subsidiary of Gold One. (e) (regulatory approvals) during the Condition Period, BCX Gold receives all Approvals which are required by Law or by any Public Authority to permit: (i) the Offer to be made to and accepted by Gold One Shareholders; (ii) BCX Gold to acquire the Gold One Shares in connection with the Subscription, and those Approvals are on an unconditional basis and remain in force in all respects and there is no notice or indication of intention to revoke, suspend, restrict, modify or not renew those Approvals; (f) (third party consents) during the Condition Period, any additional Approvals of a third party (not covered under paragraph (e) above) to permit the Transaction to complete and the Offer to be made and accepted by Gold One Shareholders are obtained on an unconditional basis. Those approvals remain in force in all respects and there is no notice or indication of intention to revoke, suspend, restrict, modify or not renew those approvals;
For personal use only use personal For (g) (distributions) during the Condition Period, Gold One does not make or declare, or announce an intention to make or declare, any distribution (whether by way of dividend, capital reduction or otherwise and whether in cash or in specie), other than a Goliath Distribution in Specie;
54 | BCX Gold Investment Holdings Ltd (h) (no action by Public Authority adversely affecting Offer) during the Condition Period: (i) there is not in effect any preliminary or final decision, order or decree issued by a Public Authority; and (ii) no application is made to any Public Authority (other than an application by BCX Gold or a related body corporate of BCX Gold, an application under section 657C or 657G of the Corporations Act, or an application commenced by a person specified in section 659B(1) of the Corporations Act in relation to the Offer), or action or investigation is announced, threatened or commenced by a Public Authority, in consequence of, or in connection with, the Transaction (other than a determination by ASIC or the Takeovers Panel in exercise of the powers and discretions conferred by the Corporations Act), and there is no change in law which: (iii) restrains, prohibits or impedes (or if granted could restrain, prohibit or impede), or otherwise materially adversely impacts on, the making of the Transaction or the completion of any transaction contemplated by the Transaction or the rights of BCX Gold in respect of Gold One and the Gold One Shares to be acquired under the Transaction; or (iv) requires the divestiture by BCX Gold of any Gold One Shares, or the divestiture of any assets of Gold One or a subsidiary of Gold One, BCX Gold or a related body corporate of BCX Gold or otherwise; (i) (no persons exercising rights under certain agreements or instruments) during the Condition Period, no person exercises or purports to exercise, or states an intention to exercise, any rights under any provision of any Material Contract or other instrument to which a member of Gold One Group is a party, or by or to which a member of Gold One Group or any of its assets may be bound or be subject, which results, or could result, to an extent which is material in the context of Gold One Group (taken as a whole), in: (i) any monies borrowed by a member of Gold One Group being or becoming repayable or being capable of being declared repayable immediately or earlier than the repayment date stated in such agreement or other instrument; (ii) any such agreement or other instrument being terminated or modified or any action being taken or arising thereunder; (iii) the interest of a member of Gold One Group in any firm, joint venture, trust, corporation or other entity or asset (or any arrangements relating to such interest) being terminated, sold or modified in a materially adverse respect; or (iv) the business of a member of Gold One Group with any other person being adversely affected in a material respect, as a result of the Initial Subscription, the Additional Subscription or the acquisition of Gold One Shares by BCX Gold; (j) (no material acquisitions, disposals or new commitments) except for any proposed transaction publicly announced by Gold One before the Announcement Date or any Gold One Project, none of the following events occurs during the Condition Period: (i) Gold One or a subsidiary of a Gold One acquires, offers to acquire or agrees to acquire one or more companies, businesses or assets (or any interest in one or more companies, businesses or assets) for an amount in aggregate greater than 10% of Gold One’s net assets as stated in the balance sheet of Gold One’s audited accounts for the financial year ended 31 December 2010 or makes an announcement in relation to such an acquisition, offer or agreement; (ii) a member of Gold One Group disposes of, offers to dispose of or agrees to dispose of one or more companies, businesses or assets (or any interest in one or more companies, businesses or assets) for an amount, or in respect of which the book value (as recorded in Gold One’s statement of financial position as at 31 December 2010) is, in aggregate, greater than 10% of Gold One’s net assets as stated in the balance sheet of Gold One’s audited accounts for the financial year ended 31 December 2010 or makes an announcement in relation to such a disposition, offer or agreement; (iii) a member of Gold One Group enters into, or offers to enter into or agrees to enter into, any agreement, joint venture, partnership, management agreement or commitment which would require expenditure, or the foregoing of revenue, by Gold One and/or its subsidiaries of an amount which is, in aggregate, more than 10% of Gold One’s net assets as stated in the balance sheet of Gold One’s audited accounts for the financial year ended 31 December 2010, other than in the ordinary course of business, or makes an announcement in relation to such an entry, offer or agreement; or (iv) a member of Gold One Group becomes a party to any agreement, joint venture, partnership, management agreement or commitment with a Related Party (or an existing agreement, joint venture, partnership, management agreement or commitment with a Related Party is amended or extended) under which a member of Gold One Group gives or proposes to give to the Related Party a financial benefit of an
amount which is (in aggregate) more than A$50,000; For personal use only use personal For
Bidder’s Statement | 55 (k) (no material adverse change) no change, effect, event, occurrence, state of facts or development (each an “Event”) occurs during the Condition Period which has, or would be reasonably expected to have, a material adverse impact on the trading or financial condition of Gold One, and including any of the following: (i) two or more members of the Gold One Executive Team (being persons holding a position in one of the following categories on or after 16 May 2011: Chief Executive Officer, Executive Vice Presidents and Senior Vice Presidents) or Neal Froneman ceases to be in full time employment of Gold One; (ii) the S&P ASX 200 Index falls to a level that is 80% or less of the level as at the close of trading on 13 May 2011 and remains at or below that 80% level for at least 15 consecutive Business Days; (iii) the London bullion price on the London Metal Exchange falls to a level that is 80% or less of the price of gold in US$/troy ounces as determined by Members of The London Gold Market Fixing Limited at 3.00pm London local time on 13 May 2011 and remains at or below that 80% level for at least 15 consecutive Business Days; (iv) a natural disaster materially and directly affecting the operations of Gold One Group for a period of at least 15 Business Days; (v) a change in any applicable laws or regulations which would result in a material impairment of the cost structure of Gold One Group; but, for the avoidance of doubt, does not include any Event: (vi) required or specifically permitted by this document; or (vii) that occurs with the written consent of BCX Gold. (l) (Independent Expert’s conclusion) during the Condition Period, Independent Expert concludes in the Independent Expert’s Report that the Transaction is fair and reasonable to Gold One Shareholders and maintains that conclusion; (m) (Gold One Directors’ recommendation) during the Condition Period, the Gold One Board does not withdraw or change the Initial Recommendation; (n) (other persons acquiring a relevant interest) during the Condition Period, no person or persons (other than any associate of BCX Gold) acquires a relevant interest in 20% or more of the Gold One Shares; (o) (Gold One Projects share consideration) during the Condition Period and in relation to a Gold One Project, Gold One does not enter into binding arrangements which involve the issue, or agreement to issue, Gold One Shares at an issue price lower than the Offer Price, provided that this Condition (o) does not apply to any arrangements in respect of the Goliath Transaction; (p) (Gold One Projects size) during the Condition Period and in relation to a Gold One Project, Gold One does not enter into binding arrangements which involve the aggregate consideration payable by Gold One for an individual Gold One Project being more than 5% of the market capitalisation of Gold One (determined by multiplying the total number of Gold One Shares then on issue by the closing price of a Gold One Share on ASX) on the date Gold One enters into binding arrangements in relation to that Gold One Project, provided that this Condition (p) does not apply to any arrangements in respect of the Goliath Transaction and the proposed acquisition under the Sale Agreement; and (q) (material breach) during the Condition Period, Gold One is not in material breach of clause 9 or 10 of the TIA and BCX Gold does not terminate
the TIA pursuant to clause 22.1 of the TIA as a result. For personal use only use personal For
56 | BCX Gold Investment Holdings Ltd For personal use only BIDDER’S STATEMENT
THIS DOCUMENT IS IMPORTANT AND REQUIRES YOUR IMMEDIATE ATTENTION If you are in any doubt as to how to deal with it, you should consult your legal, financial or other professional adviser as soon as possible.
Recommended Offer by: BCX Gold Investment Holdings Ltd (a company incorporated in the British Virgin Islands) Company number 1615265
to purchase all or some of your ordinary shares in:
ABN 35 094 265 746 Registered in South Africa as an external company under Registration No. 2009/000032/10
For each Gold One Share you will receive A$0.55 cash
Gold One Directors recommend that Gold One Shareholders who wish to realise, in whole or in part, their investment in Gold One for cash ACCEPT THE OFFER (in whole or in part), after the Gold One Shareholder Meeting (provided the Gold One Shareholders’ Resolution is passed) and in the absence of a superior proposal. In the absence of a superior proposal, the Gold One Directors also recommend that you support the Transaction and VOTE IN FAVOUR of the Gold One Shareholders’ Resolution.
The Offer is dated Monday, 8 August 2011 and will close at 7.00pm (Sydney time) / 10.00am (South African time) on Friday, 11 November 2011, unless extended or withdrawn. For personal use only use personal For